SAMATHA v. STATE OF ANDHRA PRADESH AND ORS.

SAMATHA A - v. STATE OF ANDHRA PRADESH AND ORS.

JULY 11, 1997

Constitution of India, 1950: A1ticles 14, 17, 21, 23, 38, 39, 46, 162, 244, 245, 298 Fifth Schedule-Para 5.

Rese1ved Forest Area--Grant of mining leases by Govemment to 11011- c t1ibals-Pennissibility of-Object of Fifth Schedule discussed-'Reg11latio11' includes 'Prohibition '-Executive power under Alticle 298 and legislative power under Arlicle 245-Power to dispose ·Govemment property is subject to Fifth Schedule--legislative and constitutional history of protection to Scheduled TTibes discussed. D Andhra Pradesh Scheduled Area Land Tramfer Regulation, 1959 : Section 3(1)(a), 3(4).

Schedrtled Tribe-Immovable property situated in agency tract~~Prohibition for transfer infavour of 1wn-tTibals-Word 'person' in first E paTt of clause (a) includes State Govemment and its instiumentalities-Word · 'Person' used elsewhere refers to only natural persons-Grallt of mining lease in rese1ved forest infavour of non-t1ibals held void-Transfer of Governmellt land in favour of public corporation for public pu1pose held not prohibited-Transferee should conllibute for social, economic and education- F al development of scheduled TTibes-Scope a11d power of Government to dispose prope1ty i11 Scheduled area-Constitutional limitation 011 such proper- ties.

Scheduled Tribe-Right to life and economic .empowennent. G Mi11es a11d 111i11erals (Regulation and Develop111e11t) Act, 1957: Section 11(5) (As ame11ded in 1991)

Scheduled Area-Mining leases in:-Grant to non- tlibals-Validity of

Environment (Protection) Act, 1986. H 305

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A Rese1ved Fores~ining leases in--Orant and renewal by State in ._ favour of 11on-t1ibals-Effect and validity of

Forest (Conservation) Act, 198(}-Section 2-11 Reserved forests-Ap- plicability of Act to.

B Transfer of Property Act, 1872-Section 105

Leas-Definition of

Words and Phrases :

C 'Person '-Meaning of-In the context of A.P. Schedule Area Land Transfer Regulation, 1959.

'Peace and Good Govemment'-Meaning and scope of-In the context of Para 5(2) of Fifth Schedule to•Constitution of India 'Forest and Forest Land'-Meaning of-'Socialism'-Meaning of-In the context of Preamble to the Constitution of India.

State of Andhra Pradesh granted mining leases to several non-tribal persons in the reserved forest area of Anantagiri Manda! of Visakhapat- nam District-The appellant-Society, claiming to protect the interests and life of the Scheduled Tribes in the area, filed two Writ Petitions in public interest before the Andhra Pradesh High Court questioning the power of the Government to grant mining leases in favour of non-tribals in the scheduled area. It sought issue of mandamus to terminate the mining leases which had been granted and/or renewed in favouir of the private respondents inter alia on the grounds that (i) the said leases contravened the provisions of Andhra Pradesh Scheduled Area Land Transfer Regulation, 1959 (As amended in 1970) as well as the provisions of the Forest Conservation Act, 1980; (ii) Such leases were prohibited under Section 11(5) of the Mines and Minerals (Regulation and Develop· ment) Act, 1957 (As amended by 1991 Act). G A Division Bench of the High Court dismissed the Writ Petitions holding that (i) the word 'Person' in Section 3(1) of the Regulation does not include the Government and as such the Government was not prohibited from transferring the Government land in favour ofnon-tribals within the scheduled area; (ii) The Regulation does not prohibit transfer H of the Government land by way of lease to the non-tribals; (iii) in order to

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- 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 the said provision was prospective in nature and would not apply to the existing leases; (iv) Prior approval of the Central Government under Section 2 of the Forest ((:onservation) Act was not required where the land in question has already been broken; (v) Forest (Conservation) Act applies to the reserved forest and since it was not established as to the extent of the land covered by the mining leases which form a part of the reserved forest and since the joi;1t survey conducted indicated that there was no lessee who was occupying the reserved forest area, except in one case where to an extent of two thousand metres of the mining lease forms a part of the reserved forest, the validity on account of the ·non-compliance of the C Conservation Act cannot be gone into.

Against the Judgment of the High Court the appellant preferred appeals before this Court.

In the connected appeal, the appellant M/s. Hyderabad Abrasives and D Minerals, was granted mining leases for 20 years in 1974 in the Ped- damaredumilli reserved forest area in East Godavari District of Andhra Pradesh. Some other persons were also granted mining leases in East Godavari District. M/s. Sakti, a voluntary social organisation, filed a writ petition before the Andhra Pradesh High Court challenging the grant of leases by the Government. Another Division Bench of the High Court took a contrary view holding that (i) grant of mining leases was illegal; (ii) the word 'person' used in Section 3 of the Regulatfon includes Government; (iii) any lease to the non-tribals even of a Government land situated in scheduled area was in violation of Section 3 and therefore void; (iv) a mining lease in a forest area for non-forest purpose of renewal thereof, without prior approval of the Central Government was in violation of Section 2 of the Forest Conservation Act; Accordingly,- the DivisiOn Bench directed the Governmtnt to prohibit mining operations in scheduled area except that the mines stacked on the surface be permitted to be removed after obtaining proper permits. G· Against the decision of the High Court an appeal was preferred before this Court, contending that :

(i) It is permissible to give a different meaning to the same word used in the same statute depending upon the object sought to be achieved by the H

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A statue and, therefore, it would be within the principles of interpretation to interpret the word 'person' occuring in the First Part of Section 3(1)(a) to include the State Government whereas the same wor~ 'person' used in the latter part of Section 3(1)(a) may be interpreted to mean'an individual'; (ii) The word 'Regulation' in para 5(2)(b) of the Fifth Schedule requires to be interpreted broadly to preserve not only the tribal autonomy but also to subserve distributive justice in favour of the tribals in the matter of assign- ment of the land belonging to the Government in their favour; This Clause prohibits the allotment of land to non-tribals; (iii) The term 'peace aud Good Government' in para 5(2) of the Fifth Schedule should be given wide interpretation; (iv) The expression 'Regulate the allotment of Land to members of Scheduled Tribes in such area; in Para 5(2)(b) of the Schedule should be construed to mean that the Governor should frame Regulation ensuring that laud does not pass out from tribals and the land allotments are made exclusively to tribals and the distribution of land amongst them inter se can be regulated; (v) Under the amended Section 3(1) of the Andhra D Pradesh Scheduled Area land Transfer Regulations, 1959 transfer of im- movable, property situated in the scheduled area to non-tribal is prohibited. The object of amendment of regulation was to prohibit totally transfer of any land in favour of a non-tribal member within the agency tracts; (vi) In view of Section 11 (5) of the Mines and l'v'i11erals (Regulation and Develop- ment) Act, 1957, no mining lease can be granted in favour of any person who is not a member of Scheduled Tribe; (vii) Grant of mining leases was in violation of Environment Protection Act, because the mining activities were not only polluting the tribal atmosphere and natural flora and fauna but were also becoming hazardous to human life; and (viii) In view of the embargo contained hi Section 2 of the Forest (Conservation) Act prior permission of Central Government not having been obtained the mining activities within the forest area cannot be permitted to be continued.

Disposing the appeals, this Court

1. The word 'person' in section 3(1)(a) of the Andhra Pradesh Scheduled Area land transfer Regulation, 1959 includes the State Govern- ment. Consequently, the transfer of land in the scheduled area by way of H lease, for mining purposes in favour of non-tribals stands prohibited under

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- the Fifth Schedule read with Section 3 of the Regulation.

2. However, transfer of the government land in favour of its in- strumentalities for public purpose stand excluded from the prohibition A under Para 5(2)(b)_ of the Fifth Schedule and Section 3(1)(a) of the Regulation. The leasee or licensee should incur atleast 20% of the net profit for social and economic empowerment of tribals as well as for maintenance B of ecology.

3. In the light of the provision contained in clause (a) of sub-para (2) of Para 5 of the Fifth Schedule, there is implied prohibition on the State's power of allotment of its land to non-tribals in the scheduled areas. C

4. 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 Fifth Schedule to regulate allotment of the Govern- ment land in the scheduled areas. D

5. Section 2 of the Forest (Conservation) Act,1980 prohibits de-reser- vation of forest or use .of any forest land for any non-forest purpose of assignment by way of lease or otherwise of any portion of land to any private person other than government controlled agency. It is, therefore, 'necessary for the State Government to obtain prior permission of the E Central Government for (i) de-reservation of forest; and (ii) the use of the forest land for non-forest purpose.

6. Section 11(5) of the Mines and Minerals (Regulation and Develop- ment) Act, 1957 prohibits grant of mining lease in scheduled areas in F favour of non-tribals.

7. The meaning of the expression 'forest land' requires extended meaning given so as to protect forest land from deforestation to maintain ecology and to prevent environmental degradation and hazardous effects on Right to life and flora' and fauna. G Per Ramaswamy, J.

1. Right from the inception of the Colonial administration, the agency areas were treated distinctly from other areas. Tribals were protected from exploitation; their rights and title to enjoy the lands in their H

310 SUPREME COURT REPORTS (l.997) SUPP. 2 S.C.R. A occupation and their autonomy, culture and ecology were prest:rved; in- filtration of the non-tribals area was prohibited. Sugalis, i.e. Khanabadosh, non-tribals, by migration became in due course, tribals. Even those migrant non-tribals were prohibited to purchase the lands in - agency areas from the tribals except with the prior sanction of the officer appointed by the Government in that behalf. [360-E-F] B

2. It is clear from the legislative history that from the beginning of the British rule in India, the Legislature has adopted the policy to exclude some areas totally and some partially from the governance through the Executive ·: Council and given power to the Governor of the Province and the Governor C General/Viceroy to administer them with their special responsibilities. The partially excluded areas had the dual control by the Executive with primacy given to the Governor of the Province to apply or to exclude the application of the laws made by the legislature or the Executive Council to the partially excluded schedule areas. In either event the object was to prevent the tribals to get into the wiles of the money- lenders and preservation of their property and customs and to allow the tribals autonomy of their living in accordance with their customs and culture. [365-D; E; F]

3. Agriculture is the only source of livelihood for Schedule Tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source for economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on· which they live and till, assures them equality of status and dignity of person and means of economic and social justice and potent weapon of economic empowerment in social democracy. [354-F; G]

4. A survey of various statutes imposing restrictions on alienation of lands allotted to Scheduled Tribes discloses enormity of the yawn:ing gap between making of the various Acts and their proper enforcement. The magnitude of the problem is of national importance which need to be tackled and solved by Parliamentary law and effective enforcement. [36S-C; D]

5. As a part of on-going industrial advancement, large industries or projects are being set up or constructed in the Scheduled areas displacing the Tribals and rendering them impoverished landless labourers. When A their lands are acquired for public purpose, the Government should give alternative lands for rehabilitation and easy loans for reclamation. Law relating to prohibition of alienation and restoration of lands to tribes must be simple, less cumbersome and result-oriented. The machinery must be speedy and the officers must have compassion and sense of B dedication and direction to ameliorate the economic status of the tribes to assimilate them into national main-stream. (374-D, EJ

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Prof. C.V.F. Haimendrof," Tribes of India· The Strnggle for Survival"; D1: P. V. Ramesh, "Land Refonns Land Transfer in Scheduled Area: publish- ed byA.P. Judicial Academy as "Scheduled Tribal and Social Justice" page c 178; S.N. Dubey and Ratna Murdia, "La11d Alie11atio11 and Restoratio11 in Tribal Communities in India" (Himalaya Publishing House); Dr. G.P. Reddy "Politics of T1ibal Exploitatio11" pages 66-67; Dr. Ramakant Nath, B.M. Boal and N. Soreng, "The Khonds a11d Jau11gs in A11dhra Pradesh Hand Book for Development" The Reports of the Commissioner of SCs, and STs, D 1980-81 and 1984-85; B.L Maharda, IAS "History and Culture of Giriasias", referred to.

6. The Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 came into force on March 4, 1959 in Andhra area and in Telangana E ar~a with effect from December 1, 1963. The definition of transfer under Section 2(g) is a com11rchensively 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 cooperative society composed solely of members of the F Scheduled Tribes. Section 3 prohibits transfer of immovable property by a member of the Scheduled Tribes to· a non-Scheduled Tribe. The burden is on the non-tribal to prove that the land in his possession was not acquired by transfer from a tribal; in other words, the land belongs to tribal and the non-tribal possesses it in contravention of law. In case of G any transfer made in contravention of sub-section (1) of Section 3, the agent, the Agency Division Officer, or any other prescribed officer, may on an application by any one interested, or on information given in writing by a public servant or suo motu, issue decree of ejectment against any person in possessi<m of the property claiming under the transfer. This should be done after due notice to such person. Clause (b) of sub-section (2) of H

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A Section 3 provides that if a transferer or his heirs are not willing to_ take back the property or where whereabouts of the transferer 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 B in execution of a decree and also a benami transfer made by a member of a Scheduled Tribe in favour of any other member of the Scheduled Tribes but does not includ.e a partition or a devolution by succession. [369-F; 370-B-C; 372-A; D; 372-G-H:; 373-A·B]

7. It is settled law that the transfer of immovable property between C a member of the Scheduled Tribe to a non-scheduled Tribe in the Agency tracts is null and void. The non·tribals transferee acquires no right, title and interest in that behalf in furtherance of such sale. [373-E)

Manchegowda & Ors. v. State of Kamataka & Ors., [1984) 3 SCC 301; Lingappa Pochanna Appelwar v. State of Maharashtra & Anr., [1985) 1 SCC D 479; P. Rami Reddy & Ors. v. State ofAndhra Pradesh & Ors., [1988) 3 SCC 433 and Waman Rao v. Union of India, [1981) 2 SCR 1, relied on.

8. The Regulation was extended to Telangana region w.e.f. December 1, 1963. Prior thereto, law in Telangana area was in operation 11rohibiting any transfer of agricultural lands without prior permission of the officers and 1950 Regulation draws rebuttable presumption that all the acquisi· tions of immovable property situated in Scheduled Areas ar1~ acquired through a transfer from tribals. The non-tribals shall be presumed to have acquired title from tribals unless they are able to prove to the rontrary that their possession of properties in the Agency tracts was lawfully acquired. [375-A, B, CJ

9. Establishment of the egalitarian social order through rule of law is the basic structure of t!1e Constitution. The Fundamental Rights and the Directive Principles are the means, as two wheels of the chariot, to achieve the above object of democratic socialism. The word "socialist" used in the Preamble must be read from the goals Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate Articles seek to establish, i.e., to reduce inequalities in income and status and to provide equality of opportunity and facilities. Social justice enjoins the Court to uphold government's endeavour to remove ecanomic inequalities, to provide decent standard of living to the poor and to protect the interest of the weaker sections of the society so as to assimilate all the sections of the society in a secular A integrated socialist Bharat with dignity of person and equality of status to ;ill. [396-G-H; 397-A]

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Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206; D.S. Nakara & Ors. v. UOI, [1983] 2 SCR 165; Excel Wear Etc. v. Union of India & Ors., [1979] 1 SCR 1009; State of Kamataka v. Shri Ranganatha B Reddy &Anr. Etc., [1978] 1 SCR641; Sanjeev Coke Mfg. Company v.Bharat Coking Coal Ltd. & Anr., [1983] 1 SCR 1000; State of Tamil Nadu Etc. Etc. v. L. Abu Kayur Bai & Ors. Etc., [1984] 1 SCR 725; Madhusudan Singh & Ors. v. Union of India & Ors., [1984] 2 SCC 381, referred to. c Prof. Friedlander, "Introduction of Social Welfare" page 6; B. Shiva Rao, 'The Framing of India's Constitution: Selection Documents' Vol. IV p. 944; Dias, ''Jurispmdence" (5th Edn.) on 'distributive justice'; Justice P.B. Sawant, "Socialism under the Indian Constitution"; Mahatma Gandhiji, the father of the nation, Harijans' dated October 9, 1937; Dr. V.K.R.V. Rao, D ''Indian Socialism Retrospect and Prospect'~ pages 46-47; Mr. G.D.H. Cole, "The Growth of Socialism" published in 'Law and Opinion in England in the 20th Century" (Morris Ginsberg, Editor) page 79-80, referred to.

10. The Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice. Chapter· E VI, Part X of the Constitution deals with "Scheduled Tribes and Tribal Area". Article 244 provides that the provision of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Maghalaya, Tripura and Mizoram. The Fifth Schedule makes the provisions as to the F administration and control of Scheduled Area and Scheduled Tribes. [387-H; 388-A; 368-D-E]

11. Fifth Schedule would manifest the animation of the founding fathers that lands in the Scheduled area covered by the Fifth Schedule require to be preserved by prohibiting transfers between tribals and non- G tribals and providing for allotment ofland to the members of the Scheduled Tribes in such area and regulating the carrying on of the business by money-lenders in such area. [368-B-C]

12. The predominant object of para 5(2) of the Fifth Schedule of the Constitution and the Regulation is to impose total prohibition of transfer H

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A of immovable property to any person other than a tribal for pc~ace and proven good management of tribal area to protect possession, right, title and interest of the members of the Scheduled Tribes held in th1: land at one time by the tribals. The non-tribals, at no point of time, have any legal or valid title to immovable property in agency tracts unless acquired with prior sanction of the Government and saved by any law made consistent with the Fifth Schedule. With the passage of time, when person other than tribals gained unlawful title to and possession of the lands in agency tracts, their acquisition and holding of the immovable property, unless proved otherwise, have always been null and void. The Regulation, as its predeces- sor law, did prohibit transfer by a tribal to any other person and even benami purchaser in the name of a tribal for the benefit of a non-tribal also is null and void. Non-tribal thereon, acquires no right, title and interest in the land situated in Scheduled area. Indisputably, any transfer inter vivas between tribals or non-tribals or inter se between non-tribals except testamentary disposition to a tribal, has been totally prohibited. D The only exception engrafted is the transfer to Co-operative Societies composed solely of tribals or mortgage of the land to a Co-operative Land Mortgage Bank registered as an instrumentality of the State or any Government approved lending agency to improve the agricultural lands or sale to an agent to the Government etc. A non-tribal person who is unable to find a tribal buyer is not totally prohibited to transfer it. He should offer it to the named or nominated Government agent etc. who would purchase it in the prescribed manner under the Regulation and assign it on to a tribal. [375-D-H, 376-AJ

13. It is indisputable that apart from the patta lands or other lands held by the tribals, the State holds vast tracts of land in scheduled area, in some areas with rich mineral deposits. Paragraph 5(2) of Fifth Schedule enjoins the Governor to make regulations for the peace and good gover- nance in a Scheduled area. Without prejudice to the general power, sub- sequent 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 to members of the Scheduled Tribes in the area. The object of the founding father of the Constitution in empowering the Governor, on the basis of his personal satisfaction, is to regulate by law the administration or control of the Scheduled area for peace and good governance of the scheduled Tribes in the area. [377-E; FJ

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14. The Fifth and Sixth Schedules form an integral scheme of the A Constitution with direction, philosophy and anxiety to protect the tribals from exploitation and to pre~erve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat. [391,E; Fl B B. Shiva Rao, "In the Framing of the India's Constitution, Vol. II; Vol. 9 CA.D., p.p. 965-1001, referred to.

15. The purpose of the Fifth and Sixth Schedules to the Constitution is to prevent exploitation of truthful inarticulate and innocent tribals and C to empower them socially, educationally, economically and politically to bring them into the mainstream of national life. The founding fathers of the Constituti.on were conscious of and cognizant to the problem of the exploita- tion of the tribals. They were anxious to preserve the tribal culture and their holdings. At the same time, they intended to provide and create oppor- tunities and facilities, by affirmative action, in the light of the Directive D 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 E increasingly get allotted to them individually and collectively through registered Cooperative 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 India through their Annual Budgetary allocation spent through the ap- propriate State Government as its instrumentalities or local body in a F planned development so as to make them fit for self- governance. The words "piece and good government" used in the Fifth Schedule require widest possible interpretation. [406-G-H; 407-A-D]

T.M. Kanniyan v. Income-tax Office1; Pondicheny & Anr., [1968] 2 G SCR 103 and Queen v. Russell, [1882] 7 AC 829, referred to.

16. The object of Fifth and Sixth Schedules to the Constitution, is not only to prevent acquisition, holding or disposal of the land in Scheduled Areas by the non-tribals from the tribals or alienation of such land among non-tribals inter se but also to ensure that the tribals remain in possession H

316 SUPREME COURT REPORTS [1997] SUPP. 2 S:C.R. A and enjoyment of the lands in Scheduled areas for their economic empower- ment, social status and dignity of their person. Equally exploitation of mineral resources being national wealth undoubtedly, is for the develop- ment of the nation. The competing rights of tribals and the Sltate 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 duty to protect and em- power the tribals. Therefore, the Court is required to give effed to the constitutional mandate and legislative policy of total prohibition on the transfer of the land in Scheduled area to non-tribals. [420-E, F, G]

17. In the absence of any total prohibition, undoubtedly Article 298 empowers the Governor being the head of the Executive to sanction trans- fer of its lands. Since the Executive is enjoined to protect social, economic and educational interest of the tribals and when the State leases out the - D lands in Scheduled Areas to the non-tribals for exploitation of mineral > resources, it transmits the correlative above constitutional duties and obligation to those who undertake to exploit the natural resources should r also to improve social, economic and educational empowermf:nt of the tribals. As a part of the administration of the project, the license•~ or lessee E should incur the expenditure for;

(a) re-forestation and maintenance of ecology in the Scheduled Areas;

(b) maintenance of roads and communication facilities in the F Scheduled Areas where operation of the industry has the impact;

(c) supply of potable water to the tribals;

(d) establishment of schools for imparting free education at primary and secondary level and providing vocational training G to the tribals to enable them to be qualified, competent and confident in pursuit of employment;

(e) providing employment to the tribals according to their qualifica- tions in their establishment/factory;

H (t) maintenance of sanitation;

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(g) construction of houses for tribals in the Sciisduled Areas as enclosures; the expenditure for the above projects should be part of his/its Annual Budget of the industry establishment or busi- ness advocation/venture. [421-C-H; 422-A-B]

18. In this behalf, at least 20 per cent of the net profit 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 Centre C should ensure grant of such exemption and see that these activities are undertaken, carried on and maintained systematically and continuously. The above obligations and ifuties, 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 em- D powerment of the tribals could be achieved and peace and good governance is achieved in Scheduled Areas. [422-C; D; E]

19. 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 E 245 is also subject to the Fifth Schedule, to regulate the allotment of the Government land in the Scheduled Areas. Therefore, the State Legislature of Andhra Pradesh has 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 com- F peting public purposes claim preferential policy decision, option to the State should normally be to elongate and achieve constitutional goal. Secondly, the constitutional priority yields place to private purpose, though it is hedged by executive policy. As a facet of interpretation, the Court too adopt purposive interpretation tool to effectuate the goals set down in the Constitution. Equally, the executive Government iii its policy G options requires to keep them in the backdrop and .regulate disposal of their land-property in accordance with the constitutional policy, executive decision backed by public policy and, at the same time, preserve paramount Tribal interest in the scheduled area. No abstract principle could be laid in that behalf. Each case requires examination in the back- H

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A drop of the legislative/executive action, its effect on the constitutional objectives and the consequential result yields therefrom. [401-E-H; 402-A)

20. It is true, that the Constitution has demarcated legislative, executive and judicial powers and entrusted them to the three wings of the B 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 the executive power co-extensive with the legislative power enumerated in the' Seventh Schedule read with Article 245 of the Constitution. The executive power especially conferred C by the Constitution like the pleasure tenure or the power of pardoning a convict are not apposite to the issue. The power of the executivt' Govern- ment in that behalf has wisely been devised in the Constitution, is not subject to any restriction except in accordance with the Constitution and the law made under Article 245 read with the relevant Entry in the Seventh D Schedule to the Constitution is subject to Fifth Schedule when it is applied to Scheduled area. The power of the Government to acquire, hold and dispose of the property and the .making of contracts for any purpose confer~ed by Article 298 of the Constitution equally is co-extensive with the legislative power of the Union/State. However, Article 244(1) itself specifies that provisions of the Fifth Schedule shall apply to the administrntion and E control of the Scheduled Areas and Scheduled Tribes in any State except the excluded areas specified therein. The legislative power in Clause (1) of Article 245 equally is "subject to the provisions of the Constitution i.e. Fifth Schedule. Clause (1) of para 5 of part B of the Fifth Schedule applicable to Scheduled areas, adumbrates with a uon-obstante clause that "Not- F withstanding anything in tile Constitution, in other words, despite the power, under Article 298, the Governor may, by public notification, direct that any particular Act of Parliament or of the Legislature of a State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a scheduled Area or any part thereof in the State, subject to such exceptions and modifications as he may specify in the notification and any direction given under clause (1) of para 5, may be given so as to have retrospective effect". The executive power of the State is, therefore, subject to the legislative power under Clause 5 (1) of the Fifth Scheduh~. Similarly sub-para (2) thereof empowers the Governor to make regulation for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulation may regulate the. allot· A ment of land to members of the Scheduled Tribes in such area or may prohibit or restrict the transfer of land under Clause (a) by/or among the members of the Scheduled Tribes in such areas. In other words sub-para 5(2) combines both legislative as well as executive power, clause 5(2)(a) and (c) legislative power and clause (b) combines both legislative as well B as executive power. The word 'regulation' in para 5(2)(b) is thus of wide import. [398-H; 399-A-H; 400-A; BJ

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Marn Ram Etc. Etc. v. Union of India &Anr., [1981) 1SCR1196; Lois P. Myers v. United States,. 272 US 160; 71 Led 11 and The State of Uttar Pradesh & Ors. v. Babu Ram Upadhya, [1961) 2 SCR 679, referred to. C

William H. Rehnquist "The Notion of a Living Constitution, 54 Texas Law Review 693, referred to.

21. While interpreting Article 19(1)(g) of the Constitution, this Court D has consistently held that the term 'regulation' would include total prohibi· tion. Therefore, the word 'regulate" the allotment of land to members of Scheduled Tribes in Scheduled area in the Fifth Schedule by Clause 5(2)(b) must be read as a whole to ensure regulation of the land only to _, and among the members of the Scheduled Tribes in the Scheduled area. In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State's power of allotment of its land to non-tribals in ~e Scheduled Areas. When so read there is no incompatibility and inco istency between the power of the executive Government and the Cons itution and conjoint operation would elongate the good government of the Scheduled Areas. So, while prohibiting transfer of land between natural persons, i.e. tribes and non-tribals and preventing non·tribals to purchase from or transfer to another non-tribal, his right, title or interest in the land in the Scheduled Area, at the same breathe would not be permissible for the Government to transfer their land to a non-tribal except for equally competing pubic purpose. The answer ob· viously should be that it is permissible to the Gol'ernment to transfer its land to the non· tribals. This -negative answer leads to effectuate the constitutional objective to preserve the land in the scheduled area to the tribals, prohibits the Government from allotting their land to the non· tribals; prohibit infiltration of the non·tribals into the scheduled area and prevents exploitation of the tribals by non·tribals in any form. This pur· H '

320 SUPREME COURT REPORTS [~997] SUPP. 2 S.C.R.

A posive interpretation would ensure distributive justice among tlile tribals in this behalf and elongates the constitutional commitment. Any other interpretation would sow the seed beds to disintegrate the tribal amtonomy, their tribal culture and frustrate empowerment of them socially, economi· cally and politically, to live a life of equality, dignity of person and equality B of status. [400-C; G; H; 40l·A·D]

Narendra Kumar v. Union of llldia, [1960) 2 SCR 372; Fatehchand Himmatlal v. State of Maharashtra, [1977) 2 SCC 670; State of U.P. & Ors. v. Hindustan Aluminium Corpn. & Ors., [1979) '3 SCC 229; K Ramanathan v. State of Tamil Nadu & Anr., [1985} 2 SCC 116 and Air India Statutory C Corporation Etc. v. United Labour Union & Ors. Etc., (1996) 9 SCALE 70, referred to.

22. The word 'person' in the interplay of juristic thought is either natural or artificial. Natural persons are human beings while artificial persons are Corporations. Corporations are either Corporation agg_regate or Corporation sole. The question whether or not the word 'pt:rson' 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, exempt the State from the operation of the Act as against the State and would include "State Government." [384-E; F, G]

23. The maxim "reddendo singula singulis" will apply to the' interpreta· F tion of the word "person" so that the general meaning of the word "person" in its generic sense with its width may not be cut down by the specific qualification of one species, i.e., natural "person" when it is capable to encompass, in its ambit, natural persons, juristic persons and constitu· tional mechanism and governance in a democratic set up. The State, by G Cabinet form of Gover~ment, is a persona ficta, a Corporate sole Constitu· tion empowers the State to acquire, hold and dispose of thdr property. The governor in his personal responsibility is empowered to maintain peace and good government in scheduled area. The Fifth Schedule to the Constitution empowers him to regulate allotment of the land by para 5(2)(b) read with Section 3 of the Regulation of the land be it between H natural persons, i.e. tribals and non-tribals; it imposes total prohibition

p. 321 Copy page pinpoint

.~ on transfer of the land in scheduled area. The object of the Fifth Schedule A 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 constltu· B tional objective 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) or para S of the Fifth Schedule prohibits transfers inter vivas 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 among C tribals but also prohibits allotment of the land belonging to the govern· ment to the non-tribals. In that behalf, wider interpretation of "regulation" would include "prohibition" which should be read into that clause. If so read, it subserves the constitutional objective of regulating the allotment of the land in Scheduled Areas exclusively to the Scheduled Tribes. Clause D 5(2) (b) ensures distributive justice of socio-economic empowerment which yields meaningful results in reality. If purposive construction, in this backdrop is adopted, no internal or external contradiction would emerge. The word "person" would include both natural person as well as juristic person and constitutional government. This Ifberal and wider interpreta- tion would maximise allotment of Government land in scheduled area to the tribals to make socio-economic justice assured in the Preamble and Articles 38, 39 and 46, a reality to the tribals. The restricted interpretation would defeat the objective of the Constitution. The wo.rd "person" would be so interpreted as to include State or juristic person corporate sole or persona ficta. Transfer of land by the juristic persons or allotment of land by the State to the non-tribals would stand prohibited, achieving the object of para 5(2) of the Fifth Schedule of the Constitution and Section 3 of the Re~lation. If the word 'person' is interpreted to mean only natural persons, it tends to defeat the object of the Constitution, the genus and the Regulation, its species. As a corollary, by omission in the final draft of the Fifth Schedule of the power of the State Government to transfer its G • land to the non-tribals with the sanction of a competent authorised officer or authority would, by interpretation brought into effect and the object of the Constitution would easily be defeated. Therefore, the word 'person' includes the State Government. The State Government also stands prohibited to transfer by way of lease or any other form known to law, the H

322 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R. .

A Government land in scheduled area to non-tribal person, be it natural or juristic person except to its instrumentality or a Co-operative Society composed solely of tribes as is specified in the second part of Section 3(1)(a). Any other interpretation would easily defeat the purpose of ex- clusive power entrusted by the Fifth Schedule to the Governor. If the B Cabinet form of Government would transfer the land of the Government to non-tribals, peace would get disturbed, good governance in scheduled area would slip into the bands of the non-tribals who would drive out the tribals from scheduled area and create monopoly to the well devf!loped and sophisticated non-tribals; and slowly and imperceptible, but surely, the land in the scheduled area would pass into the lands of the non-tribals. c The Jetter. 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. [407-H; 408-A-H; 401~-A-E]

24. '11Ie word 'person' in Section 3(1)(a) would, therefore, be con- D strued to include not merely the natural persons, in the context of tribal and non-tribal who deal with the land in Scheduled Area 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 transferer or transferee so that the word "regulate" in para 5(2)(b) of the E. Fifth Scheduled in relation to the land in Schedule Areas would be ap- plicable to them either as transferer or transferee of land in a Scheduled Area. It, thus, manifests the constitutional and legislative intention that tribals and a Cooperative Society consisting solely of tribal members alone should be in possession and enjoyment of the land in the scheduled area as F dealt with in various enactments starting from Gunjam and Vizianagaram Act, 1839 to the present regulation. [409-F; G; H; 410-A]

Ke1111eth Smith a11d De11is Kee11an, "English Law" (Seventh Edition) page 127; P.J. Fitzgeral "Salmond 011 Jurispmdence" (Twelfth Edition) page 66; R.W.M. Dias "Jurispmdence" (Fifth Edn.) page 265; Keeton "Eleme11tary G Principles of Jurispmdence" (1949 Edn.); America11 Jurisp1ude11ce 2nd Series, • Vol. 72 p. 407; Black's Law Dictionary, Sixth Edn. p. 675; B. Shiva Rao, "In the making of the Constitution, referred to.

State of West Bengal v. U11io11 of India, [1964] 1 SCR 371; Rese1ve H Bank of India v. Peerless General Fi11a11ce & Investme11t Co. Ltd. & Ors.,

p. 323 Copy page pinpoint

[1987] 1 SCC 424; Superintendent & Legal Remembrancer, State of West A Bengal v. CorpOJation of Calcutta, [1967] 2SCR170; State Tradi11g Corpora- tion of I11dia Ltd. v. The Commercial Tax Officer& Ors., AIR (1963) SC 1811 and U11io11 of I11dia v. Jubbi, AIR (1968) SC 360, referred to.

Madras Electric Corporation v. Boarla11d, (1955) 1 All ER 753; T.R. Commissio11er v. Whiteworth Coal Co. Ltd., (1968) 2 All ER 91; Edgar B. B Sims v. United States of America 359 US 108; 3 L ed 2nd 66; States of Ohio v. Guy T. Helveri11g, 292 US 360; 78 Led 1307; State of Georgia v. Hiram W. Evans, 316 US 159; Led 1346; United States of America v. Cooper Corpora- tion et al 312 US 600: 8?, Led 1071; United State~ v. I.C.C., (1949) 337 U.S. 426; Birkdale District Supply Co. Ltd. v. Corporation of Southpait, (1926) AC C 355; Rederiaktiebolaget Amphitdte v. The King, (1921) 3 KB 500 and Youngstown Sheet & Tube Company et al. v. Charles Sairyer, 343 US 579 at 6321 : 96 L ed 1153, referred to.

The State of Bombay v. R.M.D. Chamarbaugwala, [1957] SCR 874; lshwar Singh Bindra & Ors. v. The State of UP, [1969] 1 SCR 219; Redurimilli D Ja11ardhana Reddy v. Progressive Democratic Students' Union & Ors., [1994] 6 SCC 506; Printers (Mysore) Ltd. & Ors. v.Asstt. Commercial Tax Officer • & Ors., [1994] 2 SCC 434; Pushpa Devi & Ors. v. Milkhi Ram (dead) by his Lrs., [1990] 2 SCC 134; Commissioner of Income-Tax Bangalore v. J.H. Gotta Yadagiri, [1985) 4 SCC 343 1md Dr. Ismali Fantqui & Ors. v. UOI & E Ors., (1994] 6 SCC 360, referred t9.

25. There is no internal and ~ernal contradiction in this process of harmonious and purposive interpretation of para 5(2)(a) of the Fifth Schedule which regulates transfer between natural persons; Para 5(2)(b) encompasses within its ambit, the transfer by the Government of its land to a non-tribal and.clause (c) or the relevant clauses in Sections 3 and 4 of the Regulation. The Regulation prevents exploitation of the tribals through the State Government; from the other end, it does not allow · parting with of their land and prevents induction of non-tribals into the scheduled area by allotment of the land or by regulating allotment of the land, be it private or private corporate aggregate. The interpretation per se, therefore, is public law interpretation to subserve the constitutional purpose without recourse to private law principles. [410-C; DJ

P. Rami Reddy & Ors. Etc. v. State of A.P. & Anr. Etc., [1968] Supp. 1 SCR 443; Lingappa Pochanna Appelwar v. State of Maharashtra & H

p. 324 Copy page pinpoint

A Anr., [1985) 1 SCC 479 and Manchegowda & Ors. v. State of Kamataka & •- Ors., [1984) 3 SCC 301, relied on.

26. Under the Constitution, in all ordinary matters of administra· tlon, the Ministers take full responsibility subject to the contrnl by the Legislature. The bureaucracy gives shape to the decisions taken by the B Council or 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 the exercise or their functions relating to land under any enactment, every Minister and government must have regard to the desirability of conserv· ing the natural beauty and amenity of the countryside. [387-C; D; G] c Secretary, Jaipur Development Authority v. Daulat Mal Jain, [1997) 1 SCC 35; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR (1991) SC 101; Shamsher Singh v. State of Punjab &Anr., [1974) 2 SCC 831 and R.K. Jain v. Union of India, [1995) 4 SCC 119, referred to.

27. In a democratic policy governed by the rule oflaw, the administra· tion is run through constitutional mechanism i.e., Cabinet form of Govt. by a council of Ministers headed by the Chief Ministers. 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 social· 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 socio-economic interest and protect them from social injustice and all form:i of exploita· tions. The State is, therefore, a "person" within the constitutional mechanismpersonaficta Is enjoined to elongate the objects of the Constitu- tion. [390-C; D; El

G 28. It is well established rule of interpretation that the words of width Issued In the Constitution requires wide interpretation to effectuate the goals of establishing an egalitarian social order supplying flesh and blood to the glorious contents and context of those words and to enable the citizen to enjoy the rights enshrined in the Constitution from generation to genera· H tion. [406-D; El

p. 325 Copy page pinpoint

Asl10k Kumar Gupta v. State of U.P., JT (1997) 2 SC 251, referred to. A

29. It is an established rule of interpretation that to establish Socialist Secular Democratic Republic the basic structure under the rule of faw, pragmatic broad and wide interpretation of the Constitution makes social and economic democracy with liberty, equality of opportunity equality of status and fraternity a reality to "we, the people of India", who would include the Scheduled Tribes. All State actions should be to reach the above goal with this march under rule of law. The interpretation of the words 'person' 'regulation' and 'distribution' require to be broached broadly to elongate socio-economic justice to the tribals. The word 'regulates' In para 5(2)(b) of the Fifth Schedule to the Constitution and the title of the Regulation would not only control allotment ()f land to the Tribes in Scheduled area but also prohibits transfer of private or Government's land in such areas to the non-tribals. While later clause (a) achieves the object of prohibl_tlng transfers inter vivos by tribals to the non·tribuals or non trlbals inter se, the first clause Includes the State D Government or being a juristic person in the 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 he deemed to have been made by tribal unless the transferee establishes 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 disposi· tion by a tribal to his kith and kin/tribal or by partition among them. The regulation am!. its predecessor law in operation in the respective areas . regulate transfer between a tribal and non-tribal with prior permission of the designated officer as a condition precedent to prevent exploitation of the tribals. If a tribal is unwilling to purchase land from a non-tribal, the State Government is enjoined to purchase the land from a non-tribal as per the principles set down in the regnlatlons and to distribute the same to a tribal or a cooperative society composed solely of trlbals. [417·D·H; 418·A; BJ G

30. 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. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity. Law as a social engineering is to create just social order removing ine· H

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A qualities in social and economic life, socio-economic disabilities with which poor people are languishing by providing positive opportunities and facilities to individuals and groups of people. (391-G; 394-C-D]

31. Declaration of "Right to Development Convention" adopted by the B United Nations and ratified by India, by Article 1 "Right to development" became part of an inalienable human right. By virtue thereof, every human person and all people are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in .which all human rights and fundamental freedoms would be fully realised. All human rights are derived from the dignity of the person and his inherent worth. Fun- C damental Rights and Directive Principles of the Constitution have fused in them as fundamental human rights as indivisible and inter-dependent. The Constitution has charged the State to provide facilities and opportunities among the people and groups of people to remove social and economic inequality and to improve equality of status. Article 39(b) enjoins the State D to direct its policy towards securing distribution of the ownership and control of the material resources of the community as best to subserved the common good. The founding fathers with hind sight, engrafted with prog- nosis, not only inalienable human rights as part of the Constitution but also charged the State as its policy to remove obstacles, disabilities and ine- qualities for human development and positive actions to provide oppor- E tunities and facilities to develop human dignity and equality of status and of opportunity for social and economic democracy. Economic and social equality is a facet of liberty without which meaningful life would be hollow and mirage. (392-E-F; 392-B; C; D]

F 32. India being an active participant in the successful declaration of the Convention on Right to Development and a party signatory thereto, it is its duty to formulate its policies, legislative or executive, accord equal attention to the promotion of, and to protect the right to social,economic, civil and cultural rights of the people, in particular, the poor, the Dalits G and Tribes as enjoined in Article 46 read with Articles 38, 39 and all other related Articles read with right to life guaranteed by Article 21 of the Constitution of India. By that constant endeavour and interaction, right to life would become meaningful so as to realise its full potentiality of "person" as inalienable human right and to raise the standard of living, improve excellence and to live with dignity of person and of equal status H with social and economic justice liberty, equality and fraternity, the trinity are pillars to establish the egalitarian social order in Socialist Secular A Democratic Bharat Republic. (393-G-H; 394-A; BJ

p. 327 Copy page pinpoint

33. The core constitutional objective of "social and economic democracy'' in other words, just'social order, cannot be established without removing the inequalities in income and making endeavour to eliminate inequalities in status through the rule of law. The mandate for social and economic retransformation requires that the material resources or their ownership and control should be S!J distributed as to subserve the common good. A new social order, thereby, would emerge, out of the old unequal or hierarchical social order. The legislative or executive measures therefore, should be necessary for the reconstruction of the unequal social order by corrective and distributive justice through the rule of law. [39S-B; CJ

34. Article 21 of the Constitytion reinforces "right to life'!.--a fun- damental right-which is an inalienable human right declared by the Universal Declaration on Human Rights and the sequential Conventions to which India is a signatory. [39S-D] D 3S. The tribals, have fundamental right to social and economic empowerment. As a part of right to development to enjoy full freedom, democracy offered to them through the States regulated power of good • Government that the lands in Scheduled areas are preserved for social E economic empowerment of the tribals. (396-E]

Bandhua Mukti Morcha v. Union of India, (1984] 3 SCC 161; Subhash Kumar v. State of Bihar, AIR (1991) SC 420; Olga Tellis v. Bombay Municipal Corporation, AIR (1986) SC 180; C.E.S.C. Ltd. & Ors. v. S.C. Bose & Ors., (1992] 1 SCC 441; Consumer Education and Research Centre v. F Union of India, [199S] 3 SCC 42; Life Insurance Corporation v. Consumer Education and Research Centre, [199S] S SCC 482; Dalmia Cement Bharat Ltd. &Anr. Etc. v. UOI & Ors. Etc., JT (1996) 4 SC SSS; P.G. Gupta v. State -. of Gujarat & Ors., [199S] Supp. 2 SCC 182; Mis. Shantistar Builders v. Narayan Khim/al Totame & Ors., [1990] l SCC S20; Chameli Singh & Ors. v. State of U.P. & Anr., (1996] 2 SCC S49; Ahmedabad Municipal Corpora- G tion v. Nawab Khan Guiab Khan & Ors., JT (1996) 10 SC 48S; Maharashtra State Board of Secondary and Higher Secondary Education v. KS. Gandhi, (1991] 2 SCC; J.P. Unnikrishnan v. State of A.P., (1993] 1 SCC 64S and State of Kamataka v. Appa Batu Ingale & Ors., [199S] Supp. 4 SCC 469, referred to. H

p. 328 Copy page pinpoint

A 36. The constitution (73rd Amendment) Act, 1992 amended Part IX of the Constitution. The principle of self-government based on democratic principles at Gram Panchayat Level and upwards was introduced through Articles 343 to 343 ZG. As an integral scheme thereof the Andhra Pradesh (Provision of the Panchayats Extension to Schedule Areas) Act, 1966 came B to be made. The scheme of the Act would Indicate that the tribal autonomy of management of their resources including the prevention of the allena· tion of the land in the Scheduled Areas and taking of appropriation in that behalf for restoration of the same to the tribals, is entrusted to the Gram Panchayats. [407-D; E; G]

C 37. A lease creates a right or an interest in enjoyment of the demised property on terms and conditions contained therein to remain In posses· slon thereof for the duration of the period of lease unless it is determined in accordance with the contract or the statute. It is an encumbrance on the right to be In possession, use and enjoyment of the land by the transferee. D Lease is the outcome of separation of ownership and possession. It may be either rightful or wrongful. If it is rightful, it is an encumbrance on the owner's title but if It is wrongful the transferee acquires no lawful right to enjoy the interest therein. Section 11(5) of the Mines and Minerals

E (Regulation and Development) Act, 1957 brought by State Amendment Act prohibits grant of mining lease in Scheduled Areas in favour of the non·tribals. [418-D; E; F] -

38. Section 11 (5) 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 p 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 thj\t Government land should not be given to non-tribals. The contention that the Government G 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 contention that there is no need for its Incorporation and that the Govern· ment would be prohibited from transferring for public 'purpose, is un· tenable. They do not detract from legal reasoning and purposive H 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 in· A strumentalities and for any public purpose etc. is not prohibited for two reasons, namely, (i) there is no transfer of interest in the Government land .. in favour of a non-tribal; (ii) there is no transfer of its land in law to itself• The contention, therefore, that· the Regulation prohibits transfer of Government land for its public purpose is unsustainable. The contention B that even philonthrophic persons imbued with social zeal and spirit to ameliorate the social status and economic position of the tribals, would also be prevented to serve them . is untenable. What the Regulation prohibits is the transfer of right, title and Interest in the immovable property In scheduled area in favour of non-tribals. There Is no prohibition on non-tribal philonthrophist to organise through tribals and a Coopera· c tive society composed solely of tribals, actions to ameliorate socio· economic status of the tribals in the Scheduled Area. [419-C-H]

p. 329 Copy page pinpoint

The contention that the rich mineral wealth being a national asset cannot be kept unexploited which is detrimental to the national develop· ment, is devoid of force. Instead of getting the mineral exploited through non-tribals, by exploiting of tribals, the mineral could be exploited through an appropriate scheme, without disturbing ecology and forest by the tribals themselves, either individually or through Cooperative societies composed solely of the tribes with the financial assistance of the State or its in· strumentalities. it would itself be an opportunity to the tribals to improve their social and economic status and a source of their economic endowment and empowerment and would give them dignity of person, social and economic status and an opportunity to improve their excellence. [420-A; B; C]

39. In the light of the conclusion that the word 'person' would include the State Government, the necessary corrolary would be that the transfer of the land in Scheduled Area by way of lease, for mining purpose in favour of non-tribals stands prohibited by para 5 (2) (b) of the Fifth Schedule read -- with Section 3 of the Regulation. It is on record that the non-tribal individuals have transferred their lease hold interest in the mining leases G In favour of some of the respondent-companies. The Government stands "· prohibited to transfer the mining lease to Corporation aggregate etc. except to its instrumentality. [422-G·H]

40. The lease being a transfer of an interest in the land or a right to enjoy such property during subsistence of lease, its transfer stands H

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A prohibited. It is well settled position of law that renewal of lease is in."reality a fresh grant of lease, though it is called a renewal because it postulates the existence of a prior lease. It has been brought out from record that some of the respondents-companies have got transfer of mining lease in their favour from the individual lessees. Therefore, the transfer of lease or B renewal of mining lease in favour of some of the respondents is void as it defeats the constitutional and statutory objectives. [423-A; B; CJ

State of M.P. & Ors. v. Krishnadas Tikararn, [1995] Supp. 1 SCC 587; Ta1Un Bharat Sangh, Alwar v. Union of India & Ors., [1993] Supp. 3 SCC 115; State of Bihar v. Banshi Ram Modi & Ors., [1985) Supp. SCR 354; Mis. C Victoria Granites (P) Ltd. v. P. Rama Rao & Ors., JT (1996) 9 SCC 303 and Arnbika Quany Works &Anr. v. State of Gujarat & Ors., [1987) 1SCR562, referred to.

41. Transfer of the Government land in favour of its instrumen- talities, in the eye of law, is not a transfer but one of entrustment of its property for public purpose. Since, admittedly, a public Corporation acts in public interest and n1Jt for private gain, such transfer stands excluded from the prohibition under para 5(2) (b) of the Fifth Schedule and Section 3(l)(a) of the Regulation. Such transfer of 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. [423-D; E; FJ

42. The State Government is directed to ensure that all concerned industrialists, be they natural or juristic person stop forthwith mining operations within the scheduled area, except where the lease has been granted to the State Under-taking, i.e. A.P.S.M.D. Corporation; they should report compliance of this order to the Registry of this Court within six months of the receipt of this judgment. [431-D-E]

43. Prior to the Andhra Pradesh Forest Act, 1967, the Madras Forest G Act 1882 was in force. For declaration of reserved forest for the purpose of the Central Forest Act or a State Act, the set scheme has been devised, namely, publication in the State Gazette constituting any land as a reserved forest specifying its situation, its limit and a declaration con- stituting such land as reserved forest. The words 'Forest Land' have not been defined in the Andhra Pradesh Act or the Central Forest Act. 'Forest' H bears extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth inter-mingled with trees with pastures, be it A / ' of natural growth or man-made forestation. The F.C. Act, as amended by 1988 Act was enacted to check deforestation and cqnservation of forest.

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- Section 2, therefore, prohibits de-reservation of the forest or use of any forest land for any non-forest purpose of assignment by way of lease or otherwise of any portion of land to a11y private person other than Govern- B ment 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 if for reforestation except for preservation. Breaking up or clearance of fQrest 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 c environmental degradation.· It is, therefore, necessary for the State Government to obtain prior permission of the Central Government for (1) dereservation of forest; and (2) the use of forest land for non-forest purpose. The prior approval of the Central Government, therefore, is a condition precedent for such permission. The State Governments are D enjoined by Forest Conservation Act with power coupled with duty, to obtain prior approval of the Central Government. [424-E; 425-B; G; 426-D-F] Collins English Dictionary, (1979) Edn.; Shorter Oxford English Die- tionary; Webster's Comprehensive Dictionary (International Edn.) page 495; E Stroud's Judicial Dictionary (Fifth Edu.) Vol. 2 page 1014 and Black's Law Dictiona1y (6th Edu.) page 649, referred to.

44. The Environment (Protection) Act, 1986 was enacted to protect and improve environment and prevention of hazards to human beings, other living creatures, lands and property. Section 3 of the Act enjoins the Central F Government that it should take such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollu· tion. Thus, the meaning of the expression 'forest land' in the respective Acts requires extended meaning given so as to preserve forest land from G

- 'deforestation' to maintain ecology and to prevent environmental degrada- tion and hazardous effects on right to life. [426-G-H; 427·A-BJ

Virender Gaur & Ors. v. State of Haryana & Ors., [1995) 2 SCC 577; Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P. & Ors., [1990) 4 SCC 449; Subhash Kumar v. State of Bihar & Ors., [1991) 1 SCC 598; H

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A Sachidanand Pandey v. State of West Bengal, [1987) 2 SCC 295; State of Bihar v. Murad Ali Khan & Ors., [1988) 4 SCC 655; M.C. Mehta v. Union· of India & Ors., [1992) 1 SCC 358; Indian Council for Enviro-Legal Action v. Union of India & Ors., [1995) 3 SCC 77; Rural Litigation and Entitlement Kendra v. State of U.P., [1989) Supp. 1 SCC 504; Tarnn Bharat Sangh, A/war I B v. Union of India & Ors., [1992] Supp. 2 SCC 448; Ve/lore Citizens' Welfare Fornm v. Union of India & Ors., [1996] 5 SCC 647; Rural Litigation and Entitlement Kendra v. State of U.P. & Ors., [1989] Supp. 1 SCC 537; Siate of H.P. & Ors. v. Ganesh Wood Products & Ors., [1995) 6 SCC 363; Mis. Colorock Pvt. Ltd., Vijayawada v. The Directbr of Mines & Geology, Govern- ment ofAndhra Pradesh, [1983] 3 ALT 59; M.S. Anupama Minerals v. Union C of India & Ors .. AIR (1986) AP 225; M/s. Y~hwant Stone Wolks v. State of U.P., AIR (1988) All. 121; Upendra !ha v. State of Bihar, AIR (1988) Pat. 263 andAmbala Manibhai Patel & Ors. v. State of Gujarat, [1986] 27 2 Guj. L.R. 1073, relied on.

D 45. Mining operations, though detrimental to forest growth, are part of layout of the industry; provision should be made for investment or infrastructural planning to reforest the area; and to protect environment and regenerate forest. The Ministry of Environment and Forests and all Secretaries of all the State Governments holding charge of Forest Depart- ments, have a duty to prevent mining operations affecting the forest. E Whether mining operations are carried on within the reserved forest or other forest area, it is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human consistence nor a source to destroy flora and founa and biodiversity. The provisions of the Forest Conservation Act get attracted to ensure preservation of forest. It F is well settled law that mining operation is a non-forest purpose. It would, therefore, be mandatory that even renewal of miniilg leases without prior approval of the Central Government, is void. [428-G-H; 429-A; E; HJ

46. In respect of the lands leased to the 19th respondent, it has been averred that (i) a sum of Rs. 350 crores has been invested for manufac- G turing of "High Purity Sea Water" magnified by using 100% imported high technology. The said product saves large foreign ·exchange for the country; . and (ii) mining operations are carried on in plain area only and thereby forest area is not affected. Since these averments have been made for the first time in the written submissions, after Court reserved its decision, this H Court was deprived of the advantage of having the response of the State

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Government, which in fact, has not taken any active interest in this A litigation. Therefore, it is necessary that the Chi~f 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 collected and consider whether It is feasible to permit the Industry to carry on mining operations. If the B Committee so opines, the matter may be placed before a Cabinet Sub-Com· mittee consisting of Chief 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 effiux of time or whether it 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 C ·and submit report to this Court oil the Action so taken. [430-C-G]

47. In cases, where the similar Acts in other States do not totally prohibit grant of mining leases of the lands in the Scheduled Area, similar Committee of Secretaries and State Cabinet Sub-Committees should be constituted and decision taken thereafter. However before granting leases, D it would be obligatory for the State Government to obtain concurrence of the Central Government which would, for this purpose, constitute a Sub- committee consisting of the Prime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the State's policy would be consistent with the policy of the nation as a whole. [430-H; 431-A-B] E

48. It would also be open to the appropriate legislature, preferably after a thorough debate/conference of all the Chief Ministers, Ministers holding the concerned Ministry and the Prime Minister and the Central Ministers concerned, to take a policy decision so as to bring about a suitable enactment in the light of the guidelines laid down above so that F there would emerge a consistent scheme throughout the country in respect of the tribal lands under which national wealth in the form of minerals, is located. [431-C]

Per Saghir Ahmad, J. (Concurring) G

1. The legislative history relating to the administration and control of scheduled Areas indicates that from the very beginning, at least from the 19th Century, Scheduled Areas inhabited by aborigingals and tribals have been administered exclusively under .the control of the Central Government through the Governor of the State by providing special H

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A statutory measures. From the earliest time till the making of the Constitu· tion, it was all along felt that the transfer of land in the Scheduled Areas by a tribal to a person who was not a member of the Scheduled Tribe be totally prohibited and if such a transfer was made, it was to be treated as null and void. Government land in the Scheduled Areas could also not be allotted to persons who are not the members of the Scheduled Tribes. If such land was proposed to be allotted to them, it could be done only under the regulations made by the Governor. The basic concept was that the land of the Scheduled Tribes should be protected and should not be frittered away by transfer nor should any non-tribal be allowed to infiltrate in the Scheduled Area by getting an allotment of land made in his favour. In case of a transfer of land which was void, the power to restore land to a tribal or his heirs after evicting the non-tribal is also vested in the Government. [455-D-G]

B. Shiva Rao The Framing of India's Constitution, referred to.

D 2. Constituent Assembly Debates indicate the mood of the repre· sentatives 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. In the Draft Constitution, prepared by the Drafting Committee, there was a clear prohibition on the allotment of E 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 F non-tribals to enter into that area. [454-D; 455-H; 456-A; B]

3. The protective measures adopted through legislation for the preser- vation of tribal life, for the prevention of exploitation of tribals by non· tribals and money-lenders and to seal infilteration of non-tribals in the Agency tracts or Scheduled Areas rested on three main planks : G (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 H non-tribal.

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(c) Power of Government to evict non-tribal from the tribal's land A coming into his possession through a void sale-deed and restor~ ing the same to the tribal or his heirs. [456-B·D]

4. Under Para 5(2) of the Fifth Schedule, the Governor has been given the power to make Regulations for the "Peace and Good Government" B of the Scheduled Area. The power to make Regulations also includes that power to repeal or amend any Act of Parliament or of the State Legislature or any existing law which may, for the time being, be applicable to the Scheduled Area. The power to make Regulations is undoubtedly legislative in character. The power.to issue directions under Para 5(1) of the Fifth Schedule as to the applicability ofan Act of Parliament or State Legisla- C tore with such exceptions and modifications as the Governor may direct, is also legislative in character. (457-A; D·F]

Chatturam & Ors. v. Commissioner of Income Tax, Bihar, (1947) FCR 116 = (1~47) FLJ 92 and Jatindra Nath Gupta v. The Province of Bihar & D Ors., (1949) FLJ 225, referred to.

5. The Governor has been given the legislative power to make Regula· tions for the "PEACE AND GOOD GOVERNMENT' of any area in a State which is a Scheduled Area. The weirds "PEACE AND GOOD GOVERN· MENT' are words of very wide import and give wide discretion to the E Government to make laws for such purpose. (457-H; 458-A]

King Emperor v. Benari Lal Shanna, (1944) L.R. 72 I.A. 57; Raja Jogenmdra Narayan Deb v. Debendra Narayan Roy & Ors., (1942) L.R. 69 I.A. 76; Girindra Nath Banerjee v. Birendra Nath Pal, (1927) I.L.R. 54 Cal. 727 and T.M. Kanniya11 v.Income Tax Officer, Pondicheny andAnr., [1968) F 2 SCR 103, referred to.

Attorney-General for Saskatchewan v. Canadian Pacific Ry. Co., (1953) AC 594; Riel v. The Queen, (1885) 10 AC 675 and Chenard & Co. & Ors. v. Joachim Arissol, (1949) AC 127, referred to. G

6. In exe}'cise of the power conferred by Para 5(2) of the Fifth Schedule, the Governor of Andhra Pradesh Promulgated Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959. These regulations were amended by Regulation I of 1970, again by Regulation I of 1971 and by Regulation I of 1978. These Rei;:utations have been made to give effect to the. H

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A power of Governor und~r clauses (a) and (b) of Para 5(2) of the Fifth Schedule for "Peace and Good Government" in the Agency Tracts. These Regulations also aim at ushering in an era of social equality where the most backWard and isolated people who constitute the Scheduled Tribes may be rehabilitated effectively in the nation's main-steam. The prohibition to sell the land· to non-tribals and the further requirement that if the property B comes to be vested in the Government or it becomes property at the dis- posal of the Government, it will be sold, assigned or distributed only to the tribals also is a measure nay, a strong measure, in that direction to give effect to the philosophy of"Distributive Justice". These Regulations indicate a departure from the normal laws relating to immovable property. Normal- C Iy, an owner of an immovable property is free to transfer his property to ... anyone he likes. But if he possesses property in the Agency Tracts or the Scheduled Areas, his right to transfer the property is restricted as he can transfer it only to a member of the Scheduled Tribe or to a Co-operative Society comprising solely of the members of the Scheduled Tribes. So also, under the usufructuary mortgage, possession has necessarily to be trans- D ferred to the mortgagee but these Regulations prescribe that in no case shall possession be delivered to the mortgagee. [458-G; 463-H; 464-A-B; 461-B-C] P. Rami Reddy& Ors. v.State ofAndhra Pradesh &Anr., [1988) 3 SCC 433, referred to. E

7. At least in two circumstances, the property of a member of the Scheduled Tribe or any other person in the Scheduled Area becomes the property of the State Government:-

(1) lfa person is notable to sell his property either because a member F of the Scheduled Tribe is not willing to purchase the property or is not willing to purchase the property on the terms at which it proposed to be sold, then the Agent, or the Agency Divisional Officer or any Prescribed Officer can, by order, acquire the property on payment of compensation. The property loses its original character and becomes the property of the G State Government.

(2) If on a decree for ejectment being passed against a person in occupation of the property belonging to a Scheduled Tribe under a sale deed which is void, the property is sought to be restored to the transferor or his heirs but they are not willing to take back the property or their H whereabouts are not known, it would be open to the Government to assign or transfer j:he property to any. other member of the Scheduled Tribe or A · otherWise d/spose it of as if it was the property, at the disposal of the State Governmei:lt. [461-D-G]

p. 337 Copy page pinpoint

8. In these circµmstances, when the property either co~es to vest in the State Government or becomes a property at the disposal of the State B Government, the Government cannot transfer the property to a "person" of its own choice but has to transfer, assign or sell to a member of the Scheduled Tribe or a Co-operative Society of the Scheduled Tribes. The possibility of the Government disposing it of to a person who is not a member of the Scheduled Tri~e is totally ruled out by the Regulation.s by providing that it shall be sol~, assigned or transferred only to tribals or C their co-operative Society. If this applies to properties which become the Government properties, how the properties which are already the Govern- ment properties could be excluded from the applicability of these Regula- tions? The Government has to be bound down to the Constitutional scheme sought t!) be enforced through Regulations made by the Governor D under Para 5(2) of the Finh 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 E scope, cover the Government, as well, which if it possesses land in the Agency Tracts, cannot transfer it either by sale, allotment, lease or other- wise to a non-tribal. To this limited extent, it has to be treated as a "person" within the meaning of Clause 3(l)(a) of the Regulations. [461-H; 462-A-D]

9. The contention that the expression "or in such other manner and subject to such conditions as may be prescribed" occurring in Para 3(l)(c) indicate that the Government is not bound to sell the property to a niember of the Scheduled Tribe or the Co-operative Society of the Scheduled Tribe, cannot be accepted. The words "or in such other manner and subject to such conditions as may b!! prescribed" occurring in Para 3(l)(c) and the G words "or otherwise dispose it of as if it was a property at the disposal of the State Government" have to be read, not in isolation, but in the context of the other words used in those provisions. The emphasis throughout in these Regulations has been that the property would be sold or transferred only to a member of the Scheduled Tribe or their Co-operative Societies. H

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A The Constitutional scheme which is sought to be enforced through Regula- tions is that the property of the Scheduled Tribe or · the immovable property situated in Agency Tracts may be protected and be not frittered ' ' away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their. Co-opera- B tive Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be trasnferred to a tribal alone. The words ''.or in any other manner" in Para 3(1)(c) or the words "otherwise dispose it of as it was a property at the disposal of the State Government" occurring in Para 3 (2)(b) have to be read in that context with the result that even ifthe Government intended to deal with such immovable proper- c ties "in any other manner" it could deal only in a manner which would ultimately benefit a member of ,the Scheduled Tribe or their Co-operative Societies. The Fifth Schedule including Para 5 thereof as also the Regula• · tions 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 immov- able properties situated therein shall be protected. The Government being under a legal constraint to deal with the property situated iii 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-tribal.s as a class from acquiring or getting property on transfer. On account of this p 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 immov.able property to a non-tribal. [462-F; G; 463-A-G]

10. The scheme set out in the Fifth Schednle and Regulations made by the Governor in exercise of the power under Para 5(2) of the Schedule, G is to sell, distribute, assign or let out the Government bmd only to members of Scheduled Tribes. Section 11(5) introduced in the Mines and Minerals (Regulation and Development) Act, 1957 only seeks to give effect to what was already contained in the Fifth Schedule and the Regulations made thereunder. In order to set at rest the above controversy raised at H various levels that the Government land could also be allotted to non- .' tribals, tlie Amendm~nt was brought about in the Mines and Minerals A (Regulation and Development) Act, 1957 so as to make it sure that it was ' never the intention that the Government land could be allotted to non· tribals. The Amendment only reitrates the existing position. [464-E; F; G]

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Per Pattanaik, !. (Partly dissenting) B

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. Under different laws and regulations operating in different tribal areas prior to coming into force of the Constitution there C was restriction in relation to transfer of lands belonging to the tribals in favour of a non-tribal within the scheduled area but not such restriction was there so far as governmentland was concerned. [502-E; Fl

B. Shiv Rao "The Framing of India's Constitution'~ refe1red to. D

2. The legislative history and the debates in the Constituent Assemb· ly culminating in engrafting of Schedule V of the Constitution conferring power on the Governor to make regulation for administration of tribal area were all aimed to prevent the tribals from exploitation of non-tribals and the prohibition/restrictions were all in relation to the transfer of lands E belonging to the tribals in favour of non-trib::ls and it never intended to have any such prohibition in relation to government land. The Draft Constitution had put two restrictions, namely, a member of a Scheduled tribe was not entitled to transfer land within the scheduled area to a member of non-Scheduled tribe, and so far as the land vested in the State F is concerned, the prohibition was that the said land belonging to the State should not be allotted or settled in favour of a non-scheduled tribe except in · accordance with the Rules made in that behalf by the Governor in consultation with .the Tribes' Advisory Council. To the aforesaid Draft · several amendments were proposed by several speakers. So far as para- G graph 6 of Schedule V of the Draft Constitution is concerned, the proposal in the draft that land belonging to the State should not be allotted to or settled with any person who is not a member of Scheduled Tribe was rejected and, therefore, in the final form in Schedule V there is no such indication that even the government land within the Scheduled area should not be allotted to a non-Scheduled Tribe person. It was not the intention H

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A 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 6(2) of the Draft Constitu- tion of Schedule V but it stood deleted while bringing the Vth Schedule in its final form. (502-G-H; 476-E-G; 477-C; DJ

B 3. Vast track of lands lie within the Tribal area which is rich in mineral resources and the entire mineral resources of the country lie within the scheduled area of different States. In interpreting the provisions of the Regulation and the Constitutional mandate engrafted in Fifth Schedule of the Constitution as well as different other Articles of the .. C Constitution, it must be borne in mind that the interpretation should subserve the main object, namely the development of the scheduled area and the protection of the tribal people from exploitation of the non-tribal people. It is in this perspective Articles 46 and 37 (b) of the Constitution have to be looked into. [477-F•G-H] D

4. Article 46 embodies the concept of 'distributive justice' which connotes the removal of economic inequalities and rectifying the injustice resulting from dealings on transactions between unequals in society. It means those who have been deprived of their properties by unconscionable bargaining should be restored to their property.

Similarly, when Article 39(b) of the Constitution enjoins upon the State to have its policy towards securing that the ownership and control of the material resources of the community are so distributive as best to subserve the common good, what, it connotes is a duty on the State for building of a welfare State and an egalitarian social order. The object is that the basic need of a common man must be fulfilled and the State should endeavour to change the structure of the society. The aforesaid provision, no doubt, may support a case of nationalisation of material resources but by no stretch of imagination it can be said that it enjoins upon the State G 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 notified by India casts a responsibility on the State to promote and protect social and economic order for development of all people and it has become States' respon· H sibility to create conditions favourable~ the realisation of the right to development. There possibly cannot be any dispute with the proposition A that the State should formulate its policies and laws so that the neglected tribals within the Scheduled areas get equal opportunity with their counter-parts 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 steps so B ·as to eradicate inequalities. However, this scheme of the Constituiion does not in any manner suggest that alienation of Government land within the scheduled area was intended to be prohibited in favour of a non-tribal person. [478-B-H; 479-A]

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5. A combined reading of Article 244 and Schedule V of the Constitu- C tion would indicate that there is no constitutional obligation on the Gover- nor to make regulation prohibiting transfer of government land in favour ofa non-tribal within the scheduled area. The history oflegislation treating the tribal areas different from the other areas is basically intended to save the tribal people from being exploited by the non-tribals. It is with that objective Article 244 of the Constitution made the Fifth Schedule ap- plicable to administer scheduled area and tribal area, and the Fifth Schedule of the Constitution, in turn, conferred power on the Governor to notify the laws made by Parliament or by the legislature of the State to apply or not to apply and further Governor has been conferred power to make regulation for the peace and good government of any area within a . Sta.le. Such wide power has been conferred upon the Governor which is plenary in nature so that Governor can by regulation prevent exploitation of the tribals from the non-tribals, When such legislations made by Gover- nor in exercise of power has been challenged Courts have upheld the validity of the same on the ground that it is intended to save the tribals from the other non-tribals in the area who usually take advantage of the simplicity and ignorance of the tribal people. But it is difficult to accept the contention that the Constitutional scheme intended total prohibition of transfer of even the government land in favour of the non-tribal. [503-A; 485~E-H; 486-A] G

6. The Andhra Pradesh Scheduled Area land Transfer Regulation 1959 has been framed by the Governor in exercise of power conferred upon him under Paragraph 5(2) of the Fifth Schedule to the Constitution. This original Regulation was subsequently amended in 1970. A plain reading of the regulation as it stood prior to its amendment in 1970 clearly indicates H

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A that the Governor has framed the regulation as a regulatory measure putting some embargo on the power of transfer of a member belonging to Scheduled Tribe in respect of his immovable property. The said embargo enabled a· member of a Scheduled Tribe to transfer the immovable proper- ty only in favour of another member of a Scheduled Tribe or in favour of B a Co-operative Society composed solely of members of a Scheduled Tribe. If the transfer was intended to be made·in favour of a non-Scheduled Tribe member then it could be so made but only with previous sanction of the State Government or with the previous consent in writing of the agent or any prescribed officer subject to the rules made in that behalf. Thus immovable property belonging to a Scheduled Tribe could be lawfully C transferred in favour of a non-Scheduled Tribe member but only with previous sanction of the State Government. Under the pre-amended provisions, therefore, question of any fetter on the powers of the State Government in transferring government land in favour of a non-tribal did not arise at all. [480-C-D; 482-H; 483-A-C]

D 7. The changes brought about by the amended Regulation of 1970 were essentially intended to facilitate effective enforcement of 1959 Regula- tion and the object of the amended Regulation cannot be held to be total prohibition of alienation of all land including a government land within the scheduled area in favour of a non-tribal. [486-G] E

8. 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 p 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 on statute, there is a presumption that the word is used in the same sense throughout. But the aforesaid presumption can easily be displaced by the context in which the particular word is used. A G word which is used more than once in sub-section of a section may connote and denote divergent things depending upon the context. ' [487-G-H; 488-A-B-; G]

Suresh Chand v. Gu/am Chisti, [1990] 1 SCR 186; Mohd. Shafi v. Seventh Additional District & Sessions Judge, Allahabad & Ors., [1977] 2 H SCR 464; Reghubans Narain Singh v. The Uttar Pradesh Govemment through

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Collector of Bijnor, [1967] 1 SCR 489; Shamrao Vishnu Parnlekar v. District A Magistrate, Thana, [1956] SCR 644 and Maharaj Singh v. State of U.P. & Ors., [1977] 1SCR1072, referred to.

Fa"el v. Alexender, (1976]. 2 All ER 721 and.Madras Electric Supply Corporation Ltd. (in liquidation) v. Boarland (ll!spector of Taxes), All ER B (1955] 1 753, referred to.

9. The word 'person' used in Section 3(1) (a) of the Andhra Pradesh Scheduled Area Land Transfer Regulation as amended in 1970 has to be construed to convey the same meaning throughout the Section and the said expression does not include the State Government. Neither the legislative C history nor the object with which special power has been conferred on the Governor under Fifth Schedule to the Constitution make it necessary to construe the word 'person' in the first part of Section 3(1)(a) differently from the rest part of the Section so as to include State Government within the said expression. (503-B; CJ D

10. 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 it is not warranted that a different meaning be given to the same word 'person' in' different part of the regulation. The normal rule is that general words in a statute must receive a general construction unless there is something 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. But on examining the provisions of Section 3(1)(a) of the Regulation after its amendment, the word 'person' used in F Section 3(1)(a) of the regulation cannot be interpreted differently because neither the contexi 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. (488-H; 489-A-B; 490-D] G

11. The constitutional scheme embodied in Article 15(4) and Article 46 as well as the power conferred upon the Governor of a State under Schedule V of the Constitution are intended to preserve and protect the interest of the tribal in the tribal area. It cannot be said by any stretch of imagination that all lands within the tribal area vest in the tribal people. H

344 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.}l.

A State is the paramount owner of lands and in the garb of preventing the exploitation of tribals from the non-tribals so far as the lands belonging to the tribals are concerned the State cannot be denuded of its power to exploit resources which vest with the State. Judged from this angle there is no justification for interpreting the word 'person' in the first part of B Section 3(1)(a) of the regulation to include State and, therefore, the prohibition and restrictions. contained in the regulation would not apply to the lands belonging to the State. [491-D; E; F]

12. If the word 'person' used in Section 3(1)(a) is interpreted to mean to include the State then the expression whether or not such a C 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 or restrictions contained therein would apply with full force to inter se transfer ofland between the Scheduled Tribe and non-Scheduled D 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

E 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 the legislation, 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 Constitution and under the Constitution are intended to deal with the tribal people separately so that better attention can be bestowed for their social and economical upliftment ..It is with this objective, Fifth Schedule of the Constitution conferred power on the Governor not only to indicate which laws made by the Parliament and the State Legislature would apply within the Scheduled area and which laws would not apply, but further to make regulation for administration of the tribal areas for peace and good government in respect of a scheduled area. The matters indicated in Sub-section (2) of Section 5 of V Schedule of the Constitution as well as the general power of the Governor to frame regulation contained in sub-section (1) of Section 5 ofV Schedule, neither expressly nor by necessary implication prohibit transfer of government land in favour of a non-tribal within the Scheduled Area nor there is any mandate embodied in Article 15(4) or in Article 244 prohibiting the transfer of government land in favour of a non-scheduled tiibe person within the scheduled area. Thus the expression 'person' used in Section 3(l)(a) of the Regulation should have its natural meaning throughout the Section to mean 'natural' person' and it does not include the State; In other words, the State is not denuded of its power in the matter of exploiting its mineral resources within the scheduled area by grant or renewal of lease even in favour of non-tribal persons and the restriction§ and embargo contained in regulation 3(1)(a) is not applicable to the State in dealing with the land belonging to the State. Therefore, provisions of the Regula- tion have not been contravened by granting mining leases in favour of the Non· Scheduled Tribe person within the Scheduled Area. C [492-G-H; 493-A-H]

p. 345 Copy page pinpoint

State of West Bengal v. Union of India, [1964) 1 SCR 371; Printers (Mysore) Ltd. &Anr. v.Asstt. Commercial Tax Officer& Ors., [1994) 2 SCC 434; Commissioner of Income Tax, Bangalore v. J.H. Gotia Vadagir, [1985) 4 SCC 3434; Dr. M. Ismal Faruqui & Ors. Etc. v. Union of India & Ors. Etc. D Etc., [1994) 6 SCC 360; P. Rami Reddy & Ors. v. State of Andhra Pradesh & Anr. Etc., [1988) Supp. 1 SCR 443; Lingappa Pochanna Appelwar v. State of Maharashtra & Anr. Etc., [1985) 1 SCC 479; Manchegowda and Ors. v. State of Kamataka & Ors., [1984) 3 SCC 301 and Union of India v. Jubbi and Dunia Etc., [1968) 1SCR44, referred to. E

Appin v. Race Relations Board, [1974] 2 All ER 73, referred to.

13. Notwithstanding the conclusion that the word 'person' occurring in Section 3 (1) of the Regulation does not include 'State' and as such the mining leases granted in favour of different persons do not contravene the provisions of the Regulation, 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 obliga- tion 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 evenafter 50 years of independence. The tribal people who constitute a substantial majority of the Indian population still spend their time in jungles and other inaccessible areas and sufficient legislative and executive measure has not been taken for improving the living conditions H

346 ·SUPREME COURT REPORTS (1997] SUPP. 2 S.C,R.

A of these tribals 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. The said objective has to be achieved by appropriate legislation making it compul- B sory for the lessees within the tribal area to spend a portion of the income arising out of the mining business for the general upliftment of the living conditions of the tribal people. This should be in addition to· the royalty and other cess under different legislations. The State may also consider the question of incorporating some provisions in the leases itself for achieving the aforesaid objectives. [499-A-G] c

14. The conclusion of the High Court in the impugned judgment that the Conservation Act applies only to a reserved forest cannot be sustained. The said conclusion is therefore set aside. Consequently no mining ac- tivities can continue on any forest land unless prior approval of the D Central Government is obtained as required under Section 2 of the Con- servation Act. 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 inter- mingled with trees with pastures, be it of natural growth or men made forestation, yet unless and until it is so determined by the State Govern- E ment that the mining activities of the respondents are being carried on over forest land it will not be possible to state that the provisions of Section 2 of the Conservation Act gets attracted. Consequently, the only possible direction which this Court can issue in the facts and circumstances of the present case is that the State of Andbra Pradesh through its officers of the F 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 apart and parcel of the forest land and no prior approval of the Central Government bas been obtained for carrying out the mining activities then immediate direction should be issued to the G respondents to stop the mining activities. This direction is necessary in the case in hand as on the b.asis materials produce~ by the parties, it bas not been possible to come to the conclusion affirmately that the land in question formed a part and parcel of the forest land. [497-D; E; 498-8-F]

H T.N. Godavaraman 17iintmulkpad v. Union of llldia & Ors., [1997] 2

. SAMATHA v. STATE 347

SCC 267; [1998] 2 SCC 59; Supreme Court Monotoring Committee v. A Mussorie Dehradun Dev. Aty. & Ors., WP (Civil) No. 749 of 1995; Divisional Forest Officer & Ors. v. S. Nageswaramma, [1996] 6 SCC 442 and State of . Bihar v. Banshi Ram, Ambica Quany Works v. State of Gujarat, [1987] 1 sec 213, referred to.

15. The petitioner has.not been able to make out any case of violation of .the provisions of the Environment Protection Act in the case in hand. · The Environment (Protection) Act, 1986 was enacted by the Parliament as · it was thought necessary to protect and improve the environment and to prevent hazards to human beings, other living creatures , plants, and property. A combined reading of the provisions of the Act indicate that there must be necessary particulars to find out whether there has been any emission of the environment pollutant in excess of the standard fixed under the rules and it is only then the question of complaining before a court and taking cognizance of the same arises. In this case there is not an iota of material to come to the conclusion that on account of the mining operations. conducted by the respondents there has been any emission of environmental pollutant in excess of the standard prescribed under the Rules, nor it is possible to hold that there has been any environmental pollution on account of carrying on the mining operations. On the facts b alleged it is not possible to embark upon the enquiry as to whether the grant of leases within the tribal area are in violation of the provisions of Environment Protection Act nor the leases can be annulled on that score. [503-G; 498-H; 499-A; 501-B; C; DI Tarnn Bharat Sangh, A/war v. UOI & Ors., [1992] Supp. 2 SCC 448 and Subhash Kumar v. State of Bil!ar & Ors., [1991] 1 SCC 598, referred to.

16. Section 11(5) of the MMRD Act being prospective in nature will have no application to the existing mining leases and, therefore, the leases of the respondents' can't be annulled on that score. After coming into force of Section 11 (5) no mining leases can be granted or renewed within the Scheduled area to any person who is not a member of Scheduled Tribe within the State of Andhra Pradesh. The only exception being as contained in the proviso, namely, an undertaking owned or controlled by the State or Central Government or a society registered or deemed to be registered under Andhra Pradesh Co-operative Societies Act which is composed of H

p. 348 Copy page pinpoint

A members of Scheduled Tribes are excluded from the rigour of sub-section (5) of section 11. But section 11 (5) does not affect the subsisting leases and, therefore, the ieases in favour of the respondents cannot be said to be invalid on the ground of infraction of section 11(5) of the MMRD Act. This provision is prospective in operation and would be applicable to any lease or renewal of a lease subsequent to the enactment of section 11(5) of B the MMRD Act. The leases of the respondents being prior to the aforesaid enactment are not hit by the said provision. [503-G; 501-H; 502-A-D]

In CA. No. 4603 of 1997

C 17. In view of the conclusions in the connected appeals to the effect that the word 'person' used in Section 3(1)(a) of the Regulation does not include the State Government, and therefore, the prohibitions contained in the said Regulation with regard to transfer of land in favour of a non-tribal will not apply to the transfer of land made by the Government for the purpose of mining lease, the conclusion of the High Court on this D score is erroneous. [505-G-H; 506-A]

18. So far as the question of applicability of the Conservation Act is concerned the conclusion of the High Court in the impugned judgment has to be sustained. In view of the inquiry report and the stand taken by the E State Officials the land over which the appellant was permitted to carry on mining activities is a forest land and before grant of lease in favour of the appellant no approval of the Central Government has b!'en taken. Though the Conservation Act came into force much later than the grant of mining lease in favour of the appellant, but in view of the general directions issued by this Court in T.N. Godavanna11's case the mining F activities being a user of the forest land for non-forest purpose has to be stopped and in case it is intended to continue the mining activities the same can ·be done only after referring the matter to the appropriate authority of the Central Government and getting the permission for the same. Therefore, the conclusion of the High Court in the impugnedjudg- G ment so far as violation of Conservation Act is concerned is unexcep- tionable. Necessarily, therefore, the ultimate direction given by the High Court remains unaffected. [506-A-E]

T.N. Godavam1a11 171immulkpod v. UOI, [1997] 2 SCC 267; [1998] 2 SCC 59; Ambika Quany Works v. State of Gujarat, [1987] 1 SCC 213 and H State of Bihar v. Ba11shi Ram, [1995] 3 SCC 643, referred to.

SAMATHA v. STATE [K.RAMASWAMY,J.) 349

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4601-02 A and 4603/97 of 1997.

From the Judgment and Order dated 28.4.95 and 27.8.93 of the Andhra Pradesh High Court in W.P. Nos. 9513/93 and 7725 of 1994 and 3734/93. B Rajiv Dhawan, Sudhir Chandra, P.A. Chaudhary, Dr. Roxna S. Swamy, R.N. Keshwani, D.N. Mishra, P. Niroop, Nandini Gore, Mrs. Sona Khan, A.V. Rangam, B. Parthasarathy, T. Anil Kumar, L.N. Rao, S.U.K. Sagar, Vimal Dave, J.P. Pathak, A.C. Mahimkar, (E.C. Agrawala and K.R. Chowdhary) (NP), T.V. Ratnam, L.N. Rao and V. Sridhar Reddy, for the C appearing parties.