SAMATHA v. STATE OF ANDHRA PRADESH AND ORS.

A other authority shall make, except with prior approval of the Central Government, (i) any order directing that any reserved forest or any portion thereof shall cease to be a reserved forest, (ii) that any forest land or portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned, by way of lease or otherwise, to any private person or to any authority or corporation, agency or any other organisation, not owned, managed or controlled hy the Government, (iv) that any forest land or any portion thereof may be cleared or trees which have grown natural in the land or portion for the purpose of using it for reforestation. Clauses (iii) and (iv) were added by Amendment Act 69 of 1988 w.e.f. December 19, 1988. The explanation thereto of non-forest purpose was defined to mean the breaking up or clearing of any forest land or portion thereof for the cultivation of ....... but does not include any work relating to ancillary to conservation development and management of forest and wild life, namely, establishment of check-posts, fire lines ...... or other like purposes. Section2, therefore, prohibits de-reservation of the forest or use of any forest land for any non-forest purpose or assignment by way of lease or otherwise of any portion of land to any private person other than Government controlled or owned, organised or managed by the State Government agency; it prohibits clearance of trees or natural growth in the forest land or any portion thereof to use it for reforestation, except for preservation. Breaking up or clearance of forest land or a portion thereof is amplified to be of non-forest purpose. The object of the F.C. Act is to prevent any further deforestation which causes ecological imbalance and leads to environmental degradation. It is, therefore, necessary for the State Government to obtain prior permission of the Central Government for (1) 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 enjoined by FC Act, with power coupled with duty, to obtain prior approval of the Central Government. The leases/renewal or leases otherwise are good.

· G The Environment (Protection) Act, 1986 (for short, the 'EP Act') was enacted to protect and improve environment and prevention of hazards to human beings, other living creatures, lands and property. Section 3 of EP Act enjoins the Central Government that it should take such measures as it deems necessary or expedient for the purpose of protecting and improv- H ing the quality of the environment and preventing, controlling and abating

SAMATHA v. STA1E[KRAMASWAMY,J.] 427

environmental pollution. It would, therefore, be clear that the meaning of the expression 'forest land' in the respective Acts requires extended mean- ing given so as to preserve forest land from deforestatiori to maintain ecology and to prevent environmental degradation and hazardous effects on right to life. In Virender Gaur & Ors. v. State of Haryana & Ors., (1995] 2 SCC 577 this Court in paragraph 7 at pages 580-81 has held that environmental, ecological, air, water pollution, etc. should be regarded as amounting to violation of right to life assured by Article 21. Hygienic and environment are an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy · environment. Environmental protection, therefore, has now become a mat- ter of grave concern for human existence. Promotion of environmental protection implies maintenance of eco-friendly environment as a whole comprising of man-made and the natural environment. It is, therefore, the duty of every citizen and industry to conserve, and if it becomes inevitable to disturb its existence, it is concomitant duty to reforest and restore forestation; duty of the State to coordinate with all concerned and should ensure adquate measures to promote, protect and improve both man- made, natural environment floura and founa as well as bio-diversity.

In Rural Litigation and Entitlement Kendra v. State of U.P., [1989] Supp. 1 sec 504 in paragraph 14, this Court had observed that conscious- E ness regarding environmental upkeep and cognizance of ecological impor- tance had in recent times entered into governmental activities. The EP Act protects to upkeep forest land or reserved forest, prevents deforestation, encourages forestation and takes steps as are necessary to preserve ecol- ogy. In paragraph 23, it was held that mining activity was held uncongenial to ecology and environment. Trees are friends of mankind and forests are F inevitable necessity for human existence, healthy living and the civilisation to thrive and flourish. The need of protection and preservation of forests is fundamental duty of every citizen and all persons in comprehensive sense, i.e., juristic as well. The problem of forest preservation and protec- tion was no more to be separated from the life style of tribals. The G approach required is shift from the dependence on law and executive implementation to dependence on the conscious and voluntary participa- tion of all persons. Maintenance of ecology is the primary duty of the State to prevent any further degradation of the ecology and environment and equally is the duty of every citizen. All persons conjointly should allow H

428 SUPREME COURT REPORTS. (1997) SUPP. 2S.C.R.

A regeneration of forest as an t:ssentlal step for healthy life. This Court in Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P. & Ors., [1990) 4 SCC 449 and Subhash Kumar v. Stat~ of Bihar & Ors., [1991) 1 SCC 598, had held that the protection to environment is the duty of the State. In Sachidanand Pandey v. State of West Bengal, [1987) 2 SCC 295, it was held that it is the fundamental duty of every citizen under Article 51A(g) and Article 48A of the Constitution to protect the forest and environment. The same view was reiterated in State of Bihar v. Murad Ali Khan & Ors., [1988) 4 SCC 655 and M.C. Mehta v. Union of India & Ors., [1992) 1 SCC 358. On the positive obligation to protect environment, this Court had emphasised it in M.C. Melita's case (supra) and Indian Council for Enviro-Legal Action v. Union of India & Ors., (1995) 3 SCC 77. Industries which created environment inimicalto the human existence, were directed to be disclosed in Rural Litigation and Entitlement Kendra v. State of U.P., [1989) Supp. 1 SCC 504; Tanm Bharat Singh Alwar v. Union of India & Ors., (1992) Supp. 2 SCC 448; Ve/lore Citizens' Welfare Fornm v. Union of India & Ors., [1996) D 5 SCC 647 and Indian Council for Enviro-Legal Action case (supra). In Partirnlar, in Ve/lore Citizens case, •his court had pointed out that the sustainable development consists in preservation of the person without compromising the ability of the future generation to meet their needs. Sustainable development is a balancing concept between ecological development and industrialisation. Therefore, with a view to improve the quality of human life, while living within the carrying capacity of the subordinate ecology system, sustainable development should be maintained by the industry and the State should ensure environmental protection and prevent degradation thereof. As a facet thereof, as the principle of "the polluter pays", this Court awarded damages for causing deforestation and 1 directed development of eco-friendly environment. 1. \

Mining operations, though detrimental to forest growth, are part of layout of the industry; provision should be made for investment or in- frastructural planning to reforest the area; and to protect environment and regenerate forest. The Ministry of Environment and Forest and all Secretaries of all the State Governments holding charge of Forest Depart- ments, have a duty to prevent mining operations affecting the forest. It is significant to note that, whether mining operations are carried on within the reserved forest or other forest area. It is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to

SAMATIIA v. STATE [K RAMASWAMY, J.) 429

human consistence nor a source to destroy flora and fauna and biodiversity. A ' The provisions of the FC Act get attracted to ensure preservation of forest. In Garwal case, this Court, prohibited mining operations. In Rural Litiga- tion and Entitlement Kendra v. State of U.P. & Ors., [1989] Supp. 1 SCC 537 and State of H.P. & Ors. v. Ganesh Wood Products & Ors., [1995] 6 SCC 363 it expressed anxiety to ensure eco-friendl~ environment. In the later case, two Judges Bench applied provisions of EC Act and EP Act and held that the application of sustainable development requires that appropriate assessment should be made of the forest wealth and the establishment· of industries based on forest produce; other working should also be monitored closely to maintain the required ecological balance. No distinc- tion can be made between the Government forests and private forests in the matter of forest wealth of the nation and in the matter of environment and ecology. The same view was taken by Andhra Pradesh High Court in Mis. Colorock Pvt. Ltd. Vijayawada v. The Director of Mines & Geology, Government of A.P., (1983) 3 ALT 39; Mis. Anupama Minerals v. Union of India & Ors., AIR (1986) AP 225; Mis. Yashwallt Stone Works v. State of D U.P., AIR (1988) All 121; Upendra Iha v. State of Bihar, AIR (1988) Patna 263 and Ambalal Manibhai Patel & Ors. v. State of Gujarat, (1986) 27(2) Guj. LR 1073.

- It is well settled law that mining operation is a non-forest purpose. In Ambika Quany Works & Anr. v. State of Gujarat & Ors., (1987] 1 SCR E 562, a Bench of three Judges of this Court had held that the renewal of a mining lease, without prior approval of the Central Government was in violation of Section 2 of the FC Act. The same view was reiterated in State of M.P. & Ors. v. Krishnadas Tikaram, [1995] Supp. 1 SCC 587 and Tarun Bharat Sangh, A/war v. UniOll of India & Ors., [1993] Supp. 3 SCC 115. In F Tarun Bharat Sangh's case, it was, however, held that even for mining operations outside the Tiger Reserved Forest declared as protected area, prior permission of the Central Government was necessary. State of Bihar v. Bansi Ram Modi & Ors., [1985] Supp. 1 SCR 345, strongly relied on by the Division Bench in Samatha's case and learned counsel for the respon- G dents, was over-ruled by this Court in Ambika Quany Work's case. There- fore, the decision no longer operates as a ratio decidendi. The same view was taken by the High Courts in the above judgments. It would, therefore, be mandatory that even renewal of mining leases without prior approval of the Central Government, is void. In Mis. Victorian Granites case, sub-lease of the mining leases, even with prior approval and grant by the State H

430 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Government, was held to be illegal.

. It is seen from the evidence that the mining leases were granted by the State Government or were transferred and retransferred with the sanction of the State Government from private individuals to juristic per- sons, the partnership firms or companies. The lands with mining area are B situated either in the reserved forest or forest land or within the Scheduled Area. Therefore, all the mining leases or renewals thereof are in violation of the Fifth Schedule. Equally, mining leases/renewals of mining leases by the State Government are in violation of the Regulation 3(1)(a) read with Section 3(2) of the Regulation and F.C. Act. Therefore, they are all void. c Shri Sudhir Chandra in his written submissions has stated that in respect of the lands leased to the 19th respondent, a sum of Rs. 350 crores has been invested for manufacturing of "High Purity Sea Water" magnified by using 100% import high technology. The said product saves annually 70 D crores of foreign exchange. It is essential for modernisation of steel in- dustry. The product also has wide application for major core industry saving large foreign exchange for the country. He has also stated that the mining operations are carried on in plain area only and thereby forest area

- is not affected. However, since these averments have been made for the first time in the written submissions, after Court reserved its decision, we are deprived of the advantage of having the response of the State Govern- ment, which in fact, has not taken any active interest in this litigation. We, therefore, feel it necessary that the Chief Secretary of the Andhra Pradesh State should constitute a committee consisting of himself, Secretary (In- dustry), 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 Committee so opines, the matter may be placed before a: Cabinet sub-Committee consist- ing of Minister, Minister for Industries, Minister for Forests and Minister of Tribal Welfare to examine the issue whether licences could be allowed to continue until they expire by efflux of time or whether is expedient to prohibit further mining operations in the light of Section 11 (5) of the Mining Act, to take appropriate action in that behalf and submit report to this Court on the actions so taken.

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 Commit-

SAMATHA v. STATE[KRAMASWAMY,J.) 431

tee of Secretaries and State Cabinet sub- Committees should be constituted and decision taken thereafter.

Before granting leases, 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, B. Union Minister for Welfare, Union Minister for Environment so that the States Policy would be consist~nt with the policy of the nation as a whole.

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 C 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 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.

The State Government, therefore, 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 Undertaking, 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. The lessees of mining leases are directed not to break fresh mines; however, in the meanwhile, they are entitled to remove the minerals already extracted and stocked in the reserved forest area within four months time from today. All concerned authorities are directed to ensure compliance thereof. Even the State Undertaking carrying the mining operations, would be subject to the regulations under the FC Act and EP Act. It would be open to the State F Government to organise Co-operative Societies composed solely of the Scheduled Tribes to exploit mining operations within the Scheduled area subject to the compliance of the FC Act and EP Act.

The appeals of Samatha are accordingly allowed. The Judgment of G the High Court stands set aside and directions are issued accordingly.

The appeal of Hyderabad Abrasives and Minerals (P) Ltd. stands dismissed since their licence has already expired by efflux of time and grant of renewal is prohibited under F.C. Act and Section 11(5) of the Mining Act. No costs. H

432 SUPREMECOURTREPORTS (1997)SUPP.2S.C.R.

A S. SAGHIR AHMAD, J. Leave granted.

I have the advantage of going through the Judgments prepared - separately by Esteemed Brothers Ramaswamy and Pattanaik. I am inclined. to agree with Brother Ramaswamy, for the reasons which I am presently setting out hereinbelow. B Tribals were the first settlers in this country but they were gradually pushed back to the forests and hills by subsequent settlers who were non-tribals. _The forests and hills provided a natural barrier and isolated the tribals from people living on the plains. On account of their isolation, they remained illiterate, uneducated, unsophisticated, poor and destitute and developed their own society where they allowed themselves to be governed by their own primitive and customary laws and rituals.

2Copy pinpoint2. Successive governments who ruled India from medieval times to modem times (British Period) allowed these tribals and aboriginals to live in complete isolation and allowed them to follow their own traditional culture, social customs and animistic tribal faiths. There were many dangers in subjecting them to normal laws and they were, therefore, governed by special laws.

3Copy pinpoint3. The Tribal Areas or Agency Areas of the Madras Presidency were governed by Gunjam and Vizagapatnam Act of 1839. Then came the Scheduled Districts Act 14 of 1874 which was followed by the Agency Tracts and Land Transfer Act, 1of1917. Section 4(1) and (2) of this Act provided as under : F "4(1). Notwithstanding any rule of law or enactment to the con- trary, any transfer of immovable property situated within the agen- cy Tracts by a. member of a hill tribes shall be absolutely null and void unless made in favour of another members of a hill tribe, or with the previous consent in writing of the Agent or of any other prescribed officer.

(2) Where a transfer of property is made in contravention of sub-section (1), the Agent or any other prescribed Officer may on application by any one interested, decree ejectment against any person in possession of the property claiming under the transfer

SAMATIIA v. STATE[S.SAGHIRAHMAD,J.] 433

and may restore it to the transferor or his heirs." A

4Copy pinpoint4. Under the Government of India Act, 1935, the administration of the Scheduled Districts was exclusively vested in the Governor of the Province. Sub-sections (1) and (2) of Section 92 of the Government of India Act, 1935 providt;d as under : B "92. (1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, ~o Act of the Dominion Legislature or of the Provincial Legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the C Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.

(2) The Governor may make regulations for the peace· and good D government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Dominion Legisla- ture, or of the Provincial Legislature, or any existing Indian Law, which is for the time being applicable to the area in question. E Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect."

5Copy pinpoint5. In B. Shiva Rao's Study Volume of "The Framing of India's Constitution" it is stated as under : F

"There were two dangers to whi~h subjection to normal laws would have specially exposed these peoples, and both arose out of the fact that they were primitive people, simple, unsophisticated and frequently improvident. There was a risk of their agricultural land passing to the more civilized section of the population, and G the occupation of the tribals was for the most part agricultural : and, secondly, they were likely to get into the "wiles of the moneylender". the primary aim of government policy then was to protect them from these two d~ngers and preserve their tribal customs; and this was achieved by prescribing special procedures H

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

A applicable to these backward areas. At first individual laws were enacted, applicable to particular areas, which, among other things, prescribed simple and elastic forms of judicial administrative pro- cedures. The Scheduled Districts Act, enacted in 1874, appears to have been the first measure adopted to deal with these areas as a class. That Act enabled the executive to extend any enactment in B force in any part of Birtish India to a "scheduled district" with such modifications as might be considered necessary. In other words, the executive had power to execlude these areas from the normal operation of ordinary law and give them such protection as they might need. c The Montagu-Chelmsford Report of 1918 contained a brief reference to these areas : it suggested that the political reforms contemplated for the rest of India could not apply to these back- ward areas where the people were primitive and "there was no material on which to found political institutions". The typically backward tracts were therefore to be excluded from the jurisdic- tion of the reformed Provincial Governments and administered personally by the heads of the Provinces. In the Government of India Act of 1919 these tracts were divided into two categories. Some areas were considered so backward that they were wholly excluded from the scope of the reforms. The effect of this was that neither the Central nor the Provincial Legislature had power to make laws applicable to these areas and the power of legislation was vested in the Governor acting with his Executive Council, the Ministers being excluded from having any share in the respon- sibility for the administration of these areas. Proposals for expen- F diture in these tracts were not required to be submitted to the vote of the Legislative Assembly; and no question could be asked and no subject relating to any of these tracts could be discussed in the Assembly without the Governor's sanction."

6Copy pinpoint6. It is further stated as under : G "The object of Government policy in relation to these areas, inhabited by bac}cward, tribal and aboriginal populations, was clearly visualized' by the Simon Commission. Until then the aim had primarily been to give the primitive inhabitants of these areas H- security of land tenure, freedom in the pursuit of their traditional

SAMATHA v. STATE[S.SAGHIRAHMAD,J.] 435

... means of livelihood, and a reasonable exercise of their ancestral customs : not self- determination or rapid political advance, but experienced and sympathetic handling and protection from economic subjugation by their neighbours. The Commission real- ized that perpetual isolation from the main currents of progress would not be a satisfactory long-term solution : and that it would be necessary to educate these people ultimately to become self- reliant. In this direction practically nothing had been achieved. The Commission observed :

The responsibility of Parliament for the backward tracts will not be discharged merely by securing to them protection from exploitation and by preventing those outbreaks which have from time to time occurred within their borders. The principle duty of the administration is to educate these people to stand on their own feet, and this is a process which has scarcely begun. D The Commission recognized this problem to be one of consid- erable magnitude and complexity. On the one hand it was too large a task to be left to the efforts of missionary societies and individual officials, since coordination of activity and adequate funds were required. On the other hand the typically backward tract was deficit area and "no provincial legislature (was) likely to possess either the will or the means to devote special attention to its particular requirements". In these circumstances the Commission recommended that the responsibility for the backward classes would be adequately discharged only if it was entrusted to the Centre. It was recognized that it would not be a practicable arrangement if centralization of administrative authority in these areas led to a situation in which these areas would be separated from the Provinces of which they were an integral part : and in order to meet this difficulty the Commission suggested that even though there would be a central responsibility, the backward tracts should not be separated from the Provinces but that the Central Government should use the Governors as degree of backwardness, it could be laid down by rules how far the degree of backwardness, it could be laid down by rules how far the Governor would act in consultation with his Ministers in the discharge of these agency duties. H

436 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A The proposal for centralizing the administration of these areas was however not adopted in the constitutional reforms of 1935. Under the Government of India Act of 1935, these backward areas were classified as excluded areas and partially excluded areas. A small number of excluded areas-the total extent of these was about 18,600 square miles in Assam and 10,000 square miles in the rest B of India-in the Provinces of Madras, Bengal, the North-West Frontier Province, the Punjab and Assam, were placed under the personal rule of the Governor acting in this discretion : and while partially excluded areas were within the field of ministerial respon- sibility, the Governors exercised a special responsibility in respect c of the administration of these areas; and they had the power in their individual judgment to overrule their Ministers if they thought fit to do so. No Act of the Federal or Provincial Legislature would apply to any of these areas : but the Governors had the authority to apply such Acts with such modifications as they considered necessary. D In addition to these excluded and partially excluded areas, there were in the territory of India certain ;•tribial areas", which were defined in the Government of India Act, 1935, as "areas along the frontiers of India or in Baluchistan which are not part of British E India or of Burma or of any Indian State or of any foreign State''. The position of these areas was even more peculiar. In terms of the definition they did not form part of the territory of British India and neither the Parliament of Britain nor the Legislatures of British India claimed or exercised any direct legislative powers over these F years. The powers exercisable in these areas were described as arising out of "treaty, grant, usage, sufferance or otherwise" and the Act of 1935 contained a specific authorization enabling these powers to be exercised as part of the executive authority of the Central Government, by the Governor-General acting in his dis- cretion, and therefore outside the area of responsibility of the G Ministry."

7Copy pinpoint7. It is furth~r stated as under :

"The Cabinet Mission's statement of May 16, 1946, mentioned H the excluded and partially excluded areas and the tribal areas as

SAMATHA v. STATE(S.SAGHIRAHMAD,J.] 437

requiring the special attention of the Constituent Assembly. The A Advisory Committee on Fundamental Rights and Minorities, to be set up at the preliminary meeting of the Assembly, was to contain due representation of all the interests affected; and one of its functions was to report to the Constituep.t Assembly on a scheme for the administration of tribal and excluded areas at its meeting B on February 27, 1947, the Advisory Committee set up three sub- committees - one to consider the tribal and excluded and partially excluded areas in Assam : one to consider the tribal areas in the North-West Frontier Province and Baluchistan : and the third

- sub-committee to consider the position of excluded and partially excluded areas in the Provinces other than A~sam."

8Copy pinpoint8. The Sub-Committee on Assam submitted its report on 28th July, C

1947 while the other Sub-Committee on the Excluded and Partially Ex- cluded Areas other than Assam submitted its interim report on 18.8.1947 and final report in September, 1947. The Joint meeting of the two Sub- D Committees was held in August, 1947. The Joint meeting summed up the problems as under :

"The areas inhabited by the tribes, whether in Assam or else- where, are difficult of access, highly malarial and infested also in some cases by other diseases like yaws and venereal disease and E lacking in such civilizing facilities as roads, schools, dispensaries and water suppiy. The tribes themselves are for the most part extremely simple people who can be and are exploited with ease by plainsfolk, resulting in the passage of land formerly cultivated by them to money-lenders and other erstwhile non-agriculturists. F While a good number of superstitions and even harmful practices are prevalent among them, the tribes have their own customs and way of life with institutions like tribal and village panchayats or councils which are very effective in smoothing village administra- tion. The sudden disruption of the tribals' customs and ways by G exposure to the impact of a more complicated and sophisticated manner of life is capable of doing great harm. Considering past experience and the strong temptation to take advantage of the tribals' simplicity and weaknesses; it is essential to provide statutory safeguards for the protection of the land which is the mainstay of the aboriginal's economic life and for his customs and H

438 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A institutions which, apart from being his own, contain elements of value".

9Copy pinpoint9. It would be useful at this stage to reproduce further the two passages from Shri Rao's Book relating to_ the recommendations :

B "From the beginning the objectives of the Government's policy in regard to the tribes and tribal areas were primarily directed to the preservation of their social customs from sudden erosion and to safeguarding their traditional vocations without the danger of their being pauperized by exploitation by the more sophisticated c elements of the population. At the same time it was recognized that this stage of isolation could not last indefinitely : a second and major objective was therefore laid down, that their educational level and standard of living should be raised in order that they might in course of time be assimilated with the rest of the popula- tion. From this point of view the sub-committee was of the opinion that the policy of exclusion and partial exclusion had not yielded much tangible result in the progress of the aboriginal areas towards the removal of their backward condition or in their economic and educational betterment. The sub-cominittee did not therefore find it advisable to abolish the administrative distinction between the backward areas and the rest of the country; and it recommended that while certain areas like Sambalpur in Bihar and Angul in Orissa need no longer be treated differently from the regularly administered areas, there were other areas which needed a simplified type of administration to protect the aboriginal people from exposure to the complicated machinery of the ordinary law courts and save them from the clutches of the moneylender who took advantage of their simplicity and illiteracy, deprived them of their agricultural land, reduced them to a state of virtual serfdom. The general position, according to the sub-committee, was that the areas predominantly inhabited by tribal people should be known as "Scheduled Areas" (the intention being that these areas should figure in a schedule to a notification) and special administrative arrangements made in regard to them.

At the same, time having found the treatment of exclusion and partial exclusion to have proved a failure, the sub-committee

SAMATHA v. STATE[S.SAGHIRAHMAD,J.) 439

recommended that the responsibility for the betterment and wel- A fare of these areas should be squarely that of the Provincial Governments and that accordingly the Governors should not have any special reserved or discretionary powers in regard to these areas. But the ultimate responsibility was to be that of the Centre, both for drawing up plans for the betterment of these areas and for providing .the necessary fmances. In order to ensure that the requirements of these areas were given full consideration, the sub-committee recommended that the Constitution should provide for the setting up in each Province of a body which would keep the Provincial Government constantly in touch with the needs of the aboriginal tracts in particular and with the welfare of the tribes in general. This body was to be known as a Tribes Advisory Council, which it was proposed should have a strong repre- sentation of the tribal element.

The Tribes Advisory Council would primarily advise the government in regard to the application of laws to the Scheduled Area : no laws affecting the following matters would apply if the Tribal Advisory Council considered such a law unsuitable :

• (1) Social matters; (2) occupation of land, including tenancy laws, allotment of land and setting apart of land for village pnr- E poses; (3) village management, including the establishment of village panchayats.

The provisions for the other States were more detailed. In their case, the advisory body was known as the Tribes Advisory Council. F The membership of the Tribes Advisory Council in each of the States was to be between ten and twenty- five, of whom three- fourths were to be elected representatives of the Scheduled Tribes in the Legislative Assembly of the State as in the case of the Punjab and the United Provinces; it was !aid down as the duty of the Tribes G Advisory Council generally to advise the Government on all mat- ters pertaining to the administration of the Scheduled Areas and the welfare of the tribes. The State Government was statutorily enjoined to give effect to the advice of the council if it considered that an Act, whether of Parliament or of the State Legislature, relating to the following matters, was unsuitable for, or required H

440 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A modification in, its application to a Scheduled Areas :

(a) marriage; (b) inheritance of property; (c) social customs of tribes; ( d) land, including rights of tenants, allotment of land and reservation for any purpose; (e) village administration and village panchayats. B It was made obligatory that the Governor should act according to the advice of the Tribes Advisory Council on the application of Acts relating to these matters. He was not bound to accept the advice of the council on laws relating to other matters. The State Government was also empowered to make regulations applicable c to a Scheduled Area after consulting the council. As in the case of East Punjab and the United Provinces, such regulations would inake provision for the trial of offences other than those punishable with death, transportation for life or imprisonment for five years or more; such regulations could also provide for the trial of D disputes "other than those arising out of any such laws as may be defined in such regulations".

The transfer of land in a Scheduled Area from a tribal to a non-tribal was forbidden; and the State Government was also prohibited from allotting State land in a Scheduled Area to non- E tribals except in accordance with rules made after consulting the Tribes Advisory Council Likewise, if advised by the council, the Governor was obliged to license moneylending, prescribing such conditions as were considered necessary; and the breach of these conditions would be an offence. In order that public attention F might be focussed on the development work carried out in these areas, the State Government was required to show separately in its financial statement the revenues and expenditure pertaining to these areas.

10Copy pinpoint10. The Sub-Committee in its report with regard to the land in Tribal (Scheduled) Area, provided as un~er :

"25. Land : The importance of protection for the land of the tribals has been emphasised earlier. All tenancy legislation which has been passed hitherto with a view to protecting the aboriginal H has tended to prohibit the alienation of the tribal's land to non-

SAMATifA v. STATEIS.SAGHIRAHMAD,J.) 441 tribals. Alienation of any kind, even to other tribals, may have to A , be prohibited or severely restricted according to the different stages of advancement. We find however that provincial Govern- ments are generally alive to this question and that protective laws exist. We assume that these will continue to apply and as we have made special provision to see that land laws are not altered to the B disadvantage of the tribal in future, we do not consider additional restrictions necessary. As regards the allotment of new land for cultivation or residence, however, we are of the view that the interests of the tribal need, to be safeguarded in view of the increasing pressure on land everywhere. We have provided accord- C ingly that the allotment of vacant land, belonging to the State in Scheduled Areas should not be made except in accordance with special regulations made by the Government on the advice of the Tribes Advisory Council."

11Copy pinpoint11. In Part-II of Appendix C to this report, it was indicated as D under:

"Vacant land in a Scheduled Area which is the property of the State shall not be allotted to a non-tribal except in accordance with rules made by the Provincial Government in consultation with the E Tribes Advisory Council."

12Copy pinpoint12. The recommendations of the two Sub-Committees were not considered by the Constituent Assembly in its Session in July, 1947, when the broad principles of the Constitution were settled since, as explained by Dr. Ambedkar, they were received too late. The Drafting Committee F however, considered these proposals at the stage of drafting and suitable provisions including Schedule V & VI were included in the Draft Constitu- tion of February, 1948 in which it was indicated that the transfer of land in Scheduled Area From Tribal to non-Tribal was forbidden; and the State Government was also prohibited from allotting the State land in the G Scheduled Area to Non-Tribal except in accordance with the Rules which ,. may be made by the Governor after consulting the Tribes Advisory Coun- cil.

13Copy pinpoint13. The Draft Fifth Schedule prepared by the Drafting Committee with regard to Article 189(a) and 190(1) which related to the administra- H

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

A tion and control of Scheduled Areas and Scheduled Tribes consisted of several parts. Part I contained the general provision that the executive power of the State specified in Part I of the First Schedule shall extend to the Scheduled Areas therein. It further provided that the Governor of each State having Scheduled Areas therein shall annually, or whenever so re- B quired by the Government of India, may report to the Government regard- ing the administration of the Scheduled Areas and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.

14Copy pinpoint14. Part II applied to the States of Madras, Bombay, West Bengal, C Bihar, the Central Provinces and Berar, and Orissa. Clause 5 specified the laws applicable to Scheduled Areas in those states. It provided as under :

"5. Law applicable to scheduled areas : (1) The Governor may, if so advised by the Tribes Advisory Council for the state, by public notification direct that any particular Act of Parliament or of the D legislature of the State shall not apply to a scheduled area or any part thereof in the State subject to such exceptions and modifica- tions as he may with the approval of the said Council specify in the notification.

E Provided that where such Act relates to any of the following subjects, that is to say-

(a) marriage; (b) inheritance of property; (c) social customs of the tribes; F (d) land, other than lands which are reserved forest under the Indian Forest Act, 1927 or urider any other law for the time being in force in the area in question, including rights of tenants, allot- ment of land and reservation of land for any purpose; (e) any matter relating to village administration including the G establishment of village panchayats;

the Governor shall issue such direction when so advised by the Tribes Advisory Council.

(2) The Governor may, after consultation with the Tribes Advisory H Council for the State, make regulations for any scheduled area in

SAMATIIA v. STATE[S.SAGHIRAHMAD,J.] 443

the State with respect to any matter not provided for by any law for the time being in force in such area.

(3) The Governor may also make regulations for any scheduled area in the State with respect to the trial of cases relating to offences other than those which are punishable with death, transportation for life or imprisonment for five years or upwards or relating to disputes other than those arising out of any such laws as may be defined in such regulations, and may by such regulations empower the headmen or panchayats in any such area to try such cases.

(4) Any regulations made under this paragraph when promulgated c by the Governor shall have the same force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that legislature by this Constitution."

15Copy pinpoint15. Clause 6 which dealt with the alienation and allotment of land to D Non-Tribals in Scheduled Areas provides as under :

"6. Alienation and allotment of lands to non-tribals in scheduled areas; (1) it shall not be lawful for a member of the Scheduled Tribes to transfer any land in a scheduled area to any person who is not a member of the Scheduled Tribes; E (2) No land in a scheduled area vested in the State within such area is situate shall be allotted to, or settled with, any person who is not a member of the Scheduled Tribes except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council for the State."

16Copy pinpoint16. Part III was applicable to the State of United Provinces (now known as Uttar Pradesh). Para 12 provided as under:

"(2) The Governor may also make regulations so as to prohibit the transfer or any land in a scheduled area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes.

(3) Any regulations made under this paragraph when promul- gated by the Governor shall have the same force and effect as any H

444 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legis- lature by this Constitution."

17Copy pinpoint17. Part IV related to the State of East Punjab Clause 17 provided as under:- B "(2) The Governor may also make regulations so as to prohibit the transfer of any land in a scheduled area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes. c (3) Any regulations made under this paragraph when promul- gated by the Governor shall have the same force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legis- lature by this Constitution." D

18Copy pinpoint18. The important provision to be noticed is that although in respect of States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa, a total ban was placed on the transfer of land by a member of the Scheduled Tribe to a person who is not a member of the E Scheduled Tribe, it was provided, so far as allotment of Government land was concerned, that no land in a Scheduled Area could be allotted to or settled with a Non-Tribal except in accordance with the rules made in that behalf by the Governor after consulting the Tribes Advisory Council. This indicated that if a rule was made by the the Governor in that regard, land in a Scheduled Area which was vested in the Government, could be allotted to the Non-Tribal. It is obvious that the powers of allotment could not be exercised so long as the rules were not made.

19Copy pinpoint19. No provision, so far as allotment of Government land was con- cerned, was made for the State of United Provinces and West Bengal for which the only provision made was that the Governor may make regula- tions so as to prohibit the transfer of land in a Scheduled Area by a member of the Scheduled Tribe to any person who is not a member of the Scheduled Tribe.

20Copy pinpoint20. It also requires to be poticed that the Regulations made by the H Governor for all these States to which Schedule Fifth was ,applicable were

SAMATIIA v. STATE[S.SAGHIRAHMAD,J.] 445

to have the same force and effect as an Act of the appropriate Legislature. A But this was not stated in respect of rules which could be made by the Governor under Clause 6(2) of the Fifth Schedule applicable to State of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa.

21Copy pinpoint21. The comments and suggestions made on the Draft Constitution B including the Fifth Schedule prepared by the the Drafting Committee, so far as relevant paras, namely, Para 5, Para 6, Para 12 and Para 17 of the Fifth Schedule, are concerned, and the decision of the Drafting Committee thereon are quoted below :-

"PARAGRAPH 5 c The Government of Orissa has questioned the propriety of the provisions contained in sub-paragraph (1) of paragraph 5 in Part II of the Fifth Schedule and has made the following comments : D Under Section 92(1) of the Government of India Act, 1935 no Act of the Federal or Pwvincial Legislature applies to a partially excluded area unless the appropriate Provincial Government so directs by a notification. The plan followed in the Draft Constitution of India is, however, fundamentally different. The idea underlying paragraph 5(1) of Part II of the Fifth Schedule to the Draft Constitution is that as soon as an Act of the Federal or the Provincial Legislature is passed, it will apply automatically to all Scheduled Areas unless the Governor on the advice of the Tribes Advisory Council directs, in respect of any particular legislation, either that it shall not apply to any specified Scheduled Areas or that it shall apply to such areas, subject to specified excep- tions and modifications. Although on the whole the Govern- ment of Orissa prefer the plan indicated in para 5(1) of Part II of the Fifth Schedule to the Draft Constitution to the provision of section 92(1) of the Government of India Act, 1935, they apprehend that difficulties, mainly of an ad- ministrative nature, might arise out of the inevitable time lag between the passing of an Act by either the Dominion or the State Legislature and the decision of the Governor either that the Act shall not apply to any Scheduled Area or that in its H

446 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A application to such an area, it shall be subject to certain modifications and exceptions. Since the position will be that as soon as an Act is passed by a Legislature it will apply in all Scheduled Areas, certain rights and obligations will be created or modified by virtue of the Act. The accrual of such rights and obligations in the interim period might give rise to B an awkward situation if it is decided subsequently (and a direction is made to that effect) either that the Act shall not apply to Scheduled Areas or that it shall apply to such areas subject to certain specified exceptions and modifications. It is of course possible to give retrospective effect to the direc- c tions made under para 5 (1) in order to secure that the exceptions and modifications subject to which the Act is applied to Scheduled Areas will have effect therein from the date of the passing of the Act. If that is done, consequential provisions will have to be inserted by way of 'modifications' in order to regularize anything done under the Act during the D interim period. Even so, however, it is likely that the rights of several parties might be seriously affected and there might be much confusion. The Provincial Government, however, see no easy solution of such difficulties if the plan envisaged in para 5(1) of Part II of the Fifth Schedule is adhered to. E Note : The provisions of sub-paragraph (1) of paragraph 5 of the Fifth Schedule are based on the recommendation of the Sub-Com- mittee on Excluded and Partially Excluded Areas (Other than Assam) as adopted by the Advisory Committee. Attention is in- F vited in this connection to paragraphs 10 and 11 of Volume I (Report of the Excluded and Partially Excluded Areas (Other than Assam) Sub-Committee). It will appear from the said report that the present system under which the Governor in his discretion applies the legislation did not appeal to the committee as this principle would be regarded as undemocratic even though the G Governor in future might be an elected functionary. The criticism offered by the Government of Orissa to the provision set out in sub-paragraph (1) of paragraph 5 will also apply if the present provisions of the Government of India Act, 1935, under which no Act of the Central or a Provincial Legislature applies to an ex- H cluded or a partially excluded area unless the Governor by a public

SAMATIIA v. STATE[S.SAGHIRAHMAD,J.] 447

~ notification so directs, is adopted; for, if in such case it is essential that an Act of the Central or a Provincial legislature should apply to any such area along with other areas on the date when it

- becomes law after it has been assented to, there is bound to be some time lag between the passing of the Act and the decision of the Governor that the Act shall apply to such or that in its application to such area it shall be subject to certain modifications and exceptions as in the present case. A decision will have to be arrived at in either case as to the application or non-application of the Act when the Bill is passing through the Legislature and a notification will have to be kept ready for issue on the date the '· Bill on being assented to becomes law. c Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to recast the proviso to sub-paragraph (1) of paragraph 5 of Part II of the Fifth Schedule as follows : Provided ' that where such Act relates to any of the following subjects, that is to say : D

(a) marriage, inheritance or property for social customs of the Scheduled Tribes :

(b) and (c) (Omit); E (d) land, other than lands which are reserved forests under the Indian Forest Act, 1927, or under any other law for the time being in force in the area in question, including rights for tenants, allotment of land and reservation of land for any purpose;

(e) any matter relating to village administration including the establishment of village panchayats.

the Governor shall issue such direction when so advised by the Tribes Advisory Council,

The Government of Orissa has also made the following comments with regard to sub-paragraph (2) of Paragraph 5 of Part II of the Fifth Schedule :

With reference to the Governor's power to make regulations under paragraph 5(2) of Part II of the Fifth Schedule, the question has been raised whether the power is as plenary as H

448 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A the power at present conferred by section 92(2) of the Government of India Act, 1935. A regulation made under Section 92(2) may deal with any subject irrespective of whether it is included in the Central, Provincial or Concur- rent List; it may even amend a Central Act. Since, however sub-paragraph {4) of paragraph 5 of Part II of the Fifth B Schedule does not specifically refer to the Dominion Parlia- ment, the Provincial Government are doubtful if the power to make regulations conferred by sub-paragraph (2) of para- graph 5 will be equally plenary or will be restricted to matters on which the State Legislature will be competent to legislate. c Although the term "appropriate legislature" used in sub-para- graph (4) of paragraph 5 would etymologically include the "Dominion Parliament" as well as "the State Legislature, it appears from a perusal of the Draft Constitution that the draftsman made a distinction between "Parliament" on the one hand and "State Legislature" on the other. It may, therec D fore, be the intention of the Draft Constitution that the Governor's power to make regulations under sub-paragraph (2) of paragraph 5 will not extend to matters included in the Central List. If that is the Plan, the Provincial Government beg to differ from it, as they feel that the Provincial E Governor's power to make regulations for the good govern- ment of Scheduled Areas should continue to be as plenary as it is at present.

Note : The power to make regulations conferred by sub- paragraph F (2) of paragraph 5 is not restricted only to matters on which the State Legislature will be competent to legislate. The expression "with respect to any matter not provided for by any law for the time being in force in such area"in sub-paragraph (2) of paragraph 5 and the use of the expression "appropriate legislature" in sub- paragraph (4) of that paragraph make it clear that the power to G make regulations under sub-paragraph (2) of that paragraph is not restricted only to matters with respect to which the Legislature of the State is competent to legislate. Any further clarification is hardly necessary. However, to make intention clearer the following amendment may be made in paragraph 5 of Part II of the Fifth H Schedule:

SAMATHA v. STATE[S.SAGHIRAHMAD,J.) 449

In sub-paragraph (2) of paragraph 5 of the Fifth Schedule, A the following be added at the end :

and any regulations so made may repeal or amend any Act of Parliament or of the Legislature of the State or ·- any existing law which is for the time being applicable to such area. B Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to substitute the following for sub- paragraph (2) of paragraph 5 of Part II of the Fifth Schedule :

(2) The Governor may, after consultation with the Tribes C Advisory council for the State, make regulations for any Scheduled Area in the State with respect to any matter not provided for by any law for the time being in force in such area, and any regulations so made may repeal or amend any Act of parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area:

Provided that any regulations so made with respect to any matter enumerated. in the Union List shall be submitted forthwith to the President and, until assented to by him, shall have no effect."

PARAGRAPH 6

K Santhanam : That in paragraph 6(1) of Part ii of the Fifth F Schedule, the following be added at the end :

except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council;

Note : sub-paragraph (1) of paragraph 6 of the Fifth Schedule G follows the recommendation of the Excluded Areas Sub- Commit- tee as adopted by the Advisory Committee. But, primafacie, there should be no objection to the amendment : of the wording of sub-paragraph (2).

L.N. Sahu: That a suitable proviso be added to paragraph 6(1) of H

450 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A the Fifth Schedule to permit the making of regulations by the Provincial Government in order to prohibit the transfer of lands by members of a particular Scheduled Tribe to members of any other Scheduled Tribe.

Note : Paragraph 6 of Part II of the Fifth Schedule follows the B recommendation or of the Sub-committee on Excluded Area as adopted by the Advisory Committee. This amendment involves a question of policy. If it is accepted, then it should be redrafted as follows:

After sub-paragraph (3) of paragraph 5 of the Part II af the c Fifth Schedule, the following sub-paragraph be inserted :

(3-a) The Governor may also make regulations so as to prohibit the tra,nsfer of any land in a Scheduled Area in the State by 'a member of any Scheduled Tribe to a member of any other Scheduled Tribe. D Decision of the Drafting Committee, October 1948 : The Drafting Committee decided to recast sub-paragraph (1) of paragraph 6 of Part II of the Fifth Schedule as follows :

(1) It shall not be lawful for a member of the Scheduled E Tribes to transfer any person who is not a member of the Scheduled Tribes except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council.

F PARAGRAPH 12

K Santhanam : That in paragraph 12(2) of Part III of the Fifth Schedule, after the words "so as to prohibit" the words "or regulate" be inserted.

G Note : Sub-paragraph (2) of paragraph 12 follows the recommen- dation of the Excluded Areas Sub-Committee as adopted by the Advisory Committee. This amendment may, however, be accepted.

Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to recast sub-paragraph (2) of paragraph 12 H of part III of the Fifth Schedule as follows :

SAMATHA v. STATE(S.SAGHIRAHMAD,J.] 451

(2) The Governor may also make regulations so as to control A or prohibit the transfer of any land in a Scheduled Area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes.

PARAGRAPH 17" B K Santhanam : That in paragraph 17(2) of Part IV of the Fifth Schedule after the words "so as to prohibit" the words "or regulate" be inserted.

Note : The remarks on the amendment to paragraph 12 above C would also apply to this amendment. This amendment may be accepted.

Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to recast sub-paragraph (2) of paragraph 17 of Part IV of the Fifth Schedule as follows : D (2) The Governor may also make regulations so as to control or prohibit the transfer of any land in a Scheduled Area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes." E

22Copy pinpoint22. When the Constituent Assembly took up the Fifth Schedule for consideration on 5th September, 1949, Dr. B.R. Ambedkar moved another Draft Fifth Schedule in place of the original Fifth Schedule. This Schedule was simpler in form and uniformly applied to all the Scheduled Areas. Para 5 of new Draft is quoted below : F "5. Law Applicable to scheduled areas - (1) Notwithstanding any- thing contained in this Constitution the Governor or Ruler, as the case may be, may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a scheduled area or any part thereof in the State or shall apply G to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notifica- tion. ··:. (2) The Governor or Ruler, as the case may be, may make regulations for the peace and good government of any area in a H

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

State which is for the time being a Scheduled Area.

In particular and without prejudice to the generality of the l foregoing power, such regulations may -

(a) prohibit or restrict the transfer of land by or among members B of the Scheduled Tribes in any such area;

(b) regulate the allotment of land to members of the Scheduled Tribes in such areas;

( c) regulate the carrying on of business as money- lender by c persons who lend money to members of the Scheduled Tribes in such areas.

(3) In making any regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor or Ruler may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

( 4) All regulations made under this paragraph shall be sub- mitted to the President and until assented to by him shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governor or the Ruler making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council." F

23Copy pinpoint23. Before the Fifth Schedule was finally adopted by the Constituent Assembly, there was debate in the Assembly on every Clause of the Schedule. It will be useful, at this stage, to reproduce some passages from the Constituent Assembly Debate as under : G "(Shri Yudhisthir Mishra)

The special purpose for moving this amendment is that there are areas in Orissa and the C.P. States which may not be specified as scheduled areas but there are certain Scheduled Tribes among H which certain kinds of land laws are prevalent. For example, in

SAMATIIA v. STATE(S.SAGHIRAHMAD,J.] 453 C.P. and Orissa States, it is not permissible on the part of a A non-aboriginal to acquire the lands of an aboriginal without the sanction of the Government. Now, Sir, in that case, supposing according to paragraph 5, the Governor or the Ruler of a State does not make any regulation and retains the same provisions applicable to non-aboriginals with respect to the transfer of lands; B then I shall submit that there will be no use in saying that the Government is prepared to safeguard the interests of the tribal people."

24Copy pinpoint24. Shri Brajeshwar Prasad suggested as under : c "............The provinces being weak in economic resources are not in a position to shoulder the responsibility. Hence I plead that the Centre should take command of the tribal areas. The Government of India has no right to exist if it cannot undertake to guarantee means of livelihood and free educational and medical facilities even for such a small number of people .... D

I want, Sir, that no land in the scheduled areas belonging to an Adibasi should be allowed to be sold or mortgaged even to tribals without the permission of the Deputy Commissioner. Such a provision exists in Santhal Pargana. I am not at all in favour of dispossessing those non-tribals who have got lands or property in the scheduled areas, but no further lands should be given to non-tribals. This protection is needed in the interests of the tribals. It is also in consonance with the demands of the tribal leaders. This concession will generate a feeling of loyalty in the hearts of the tribal people........"

25Copy pinpoint25. Shri Jadubans Sahay forcefully argued :

"........So far as land is concerned, it is not our intention, nor of the provincial Governments where the tribals have provincial Govern- G ments have made laws to see that land should not pass out of the hands of the tribal people; in our province, the Chota Nagpur Tenancy Act was modified and altered long long before 1937 in order to see that no land should pass out of the hands of the tribal people. But, there were various difficulties in the original schedule H

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

A that land should not be settled by the Government to any one except the tribal people. In the Scheduled areas, there are not only • the tribal people; there are Harijans also; there are other ~astes also who are equally backward, if not otherwise, at least economi- cally, at the tribal people. Is it, then, Sir, our wish that in those B areas where the Harijans and other backward people remain, land should not be settled by the Government to them also? Of course, the tribal people should have the preference as well as the Harijans living in those areas. If these things are made elastic, we should have nothing to say on this point. But, the Government should see c and in the future we also should see that preference is given to the tribal people and if they have no land, the landless tribal people should have the first priority.....•......"

26Copy pinpoint26. The above portions have been extracted from the Constituent Assembly Debates to indicate the mood of the representatives of the people and the urgency they felt in protecting the land of the tribals and need for prohibiting transfer of land in the Scheduled Areas to non-tribals by the State Government.

27Copy pinpoint27. Para 5(2) of the Fifth Schedule, as finally adopted and engrafted in the Constitution, provided as under :

"5(2). The Governor or Rajpramukh, as the case may be, may make regulations for the peace and good government of any area in a state which is for the time being a Scheduled Area.

F In particular and without prejudice to the generality of the forego- ing power, such regulations may -

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;

G (b) regulate the allotment of land to members of the scheduled tribes in such area;

( c) regulate the carrying on of business as money- lender by persons who lend money to members of the scheduled tribes 'H in such areas.

SAMAlHA v. STATE(S.SAGHIRAHMAD).J 455

(3) In making any such regulation as is referred to in sub-paragraph A (2) of this paragraph, the Governor or Ruler may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

(4) All regulations made under this paragraph shall be submitted forthwith to the President and until assented to by him shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governor or the Ruler making the regulation has, in the case where there is ·a Tribes Advisory Council for the State, consulted such 0 Council."

28Copy pinpoint28. The word "Rajpramukh" was subsequently deleted by the Con- stitution (Seventh Amendment) Act, 1956. D

29Copy pinpoint29. The above legislative history indicates that from the very begin- ning, at least from the 19th Century, Scheduled Areas inhabited by aboriginals and tribals have been administered exclusively under the con- trol of the Central Government through the Governor of the State by .. providing special statut.ory measures. It 1s obvious that from the earliest time till the making of the Constitution, 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 sucli a transfer was made, it was to be treated as null and void. Government land in the Scheduled Areas could also not be allotted to persons who were not the members of the Scheduled Tribes. If such land was proposed to be allotted to them, it could be done only under the regulations made by the Governor. The basic concept was that the· land of the Sclieduled Tribes should be protected and should not be frittered away by transfer nor should any non-tribal be allowed to infiltrate in the Scheduled Area by getting an allotment of land made in his .favour. In case of a transfer of land which was void, the power to restore land to a tribal or his heirs after evicting the non-tribal was also vested in the Government.

30Copy pinpoint30. It has already been seen above that in the Draft Constitution, prepared by the Drafting Committee, there was a clear prohibition on the allotment of Government land to non-tribals except in accordance with the rules made by the Governor. H

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

31Copy pinpoint31. In the Constituent Assembly when the Draft Fifth Schedule was , considered, no Member raised any objection that the Government should be free to allot its land to the non-tribals in the Scheduled Areas as all the Members were conscious of the fact that the special privileges and special status enjoyed by the tribals should not be disturbed by allowing non-tribals to enter into that Area. B

32Copy pinpoint32. The protective measures adopted through Legislation for the preservation of tribal life, for the prevention of exploitation of tribals by non-tribals and money-lenders and to seal infiltration of non-tribals in the Agency tracts or Scheduled Areas rested on three main planks : c (a) Prohibition of transfer of land by tribal to a non-tribal with the stipulation that such transfer will be null and void. .. (b) Prohibiting Government from allotting land vested in it to non- c tribal. D (c) Power of Government to evict non-tribal from the tribal' s land coming into his possession through a void sale-deed and restoring the same to the tribal or his heirs.

33Copy pinpoint33. The question is whether this position is still reflected in the Fifth Schedule read with Articles 15(4), 46 and 244 of the Constitution. ..

34Copy pinpoint34. The Fifth Schedule as finally brought on the pages of the Con- stitution does not contain any specific prohibition.

35Copy pinpoint35. After specifying that the executive power of the State extends to p the Scheduled Areas therein and that the Governor shall report annually to the President regarding the administration of those areas and that the executive power of the Union extends to the giving of direction to the States about the administration of the Scheduled Areas and further that there shall be a Tribes Advisory Council to advise on such matters pertain- ing to the welfare and advancement of the Scheduled Tribes as may be referred to them by the Governor, the Fifth Schedule, in Para 5 thereof, proceeds to speak about the applicability of laws to the Scheduled Areas by saying that the Governor may, by Notification, direct that an Act of Parliament or Legislature of the State shall not apply to the Scheduled Area or that it shall apply with such exceptions and modifications as may be specified in the Notification. These directions may also be issued with

SAMATHA v. STATE[S.SAGHIRAHMAD,J.] 457

retrospective effect. A

36Copy pinpoint36. Under Para 5(2) of the Fifth Schedule, the Governor has also been given the power to make Regulations for the "Peace and Good Government" of the Scheduled Area.

37Copy pinpoint37. Apart from this power which is in very vide and General terms, B Regulations could also be made by the Governor to :

(a) prohibit or I\estrict the transfer of land by or among member of the Scheduled Tribes in such area;

(b) regulate the allotment of land to members of the Scheduled C Tribes in such area;

(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. D

38Copy pinpoint38. The power to make Regulations also includes the power to repel 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 . . 39. The power to make Regulations is undoubtedly legislative in character. The power to issue directions under Para 5(1) of the Fifth Schedule as to the applicability of an Act of Parliament or State Legislature with such exceptions and modifications as the Governor may direct, is also legislative in character. In Chatturam & Ors. v. Commissioner of Income Tax, Bihar, (1947) FCR 116 = (1947) FLJ 92, it was laid down with reference to Section 92(1) of the Government of India Act, 1935 that when the Governor issues a Notification under Section 92(1) by which Federal Laws are applied to Excluded and Partially Excluded areas (Scheduled Areas), he exercised a legislative power. So also when the Governor makes Regulations in exercise or power under Para 5(2) of the Fifth Schedule, which is equivalent to Section 92 of the Government of India Act, 1935 and repeals or amends any Act of parliament or State Legislature, he exercises legislative power as the principle laid down in Chhall.tram's case (supra) which was followed in Jatindra Nath Gupta v. The Province of Bihar & Ors.,(1949) FLJ 225, would be applicable to this situation also. •

40Copy pinpoint40. The Governor has also been given the legislative power to make H

458 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A Regulations for the "PEACE AND GOOD GOVERNMENT" of any area in a State which is a Scheduled Area. The words "PEACE AND GOOD ·- GOVERNMENT" are the words of very wide import and give wide dis- cretion to the Governor to make laws for such purpose. In King Emperor v. Benoari Lal Sharma, (1944) L.R. 72 IA. 57 and in Attorney-General for B Saskatchewan v. Canadian Pacific Ry. Co., (1953) AC. 594, it was held that the words "PEACE, ORDER AND GOOD GOVERNMENT" are the words of very wide import giving wide power to the authority to pass laws for such purposes. In Raja Jogendra Narayan Deb v. Debendra Narayan Roy & Ors., (1942) L.R. 69 IA. 76, it was explained that these words, namely, "PEACE, ORDER AND GOOD GOVERNMENT" have reference to the C scope and not to the merits of the legislation. It was again explained in Girindra Nath Banerjee v. Birendra Nath Pa~ (1927) I.L.R. 54 Cal. 727 that these words are words of the widest significance and it is not open to the Court to consider whether any legislation made by the Governor would conduce to peace and good Government.

41Copy pinpoint41. The words "PEACE, PROGRESS AND GOOD GOVERN- MENT" ha\·e also been used in Article 240 of the Constitution which empowers the President to make Regulations for certain Union Territories. This Court had an occasion to consider the significance of these words in T.M. Kanniyan v. Income-Tax Officer, Pondicheny and Anr., (1968] 2 SCR E 103 and relying upon the above decisions as also those rendered in Riel .v The Queen, (1885) 10 AC. 675 and Chenard and Co. & Ors. v. Joachim Arissol, (1949) AC. 127, it was held that the power of the President to make Regulations under Article 240 was very wide and the President could make Regulations with respect to a Union Territory occupying the same F field on which Parliament could also make laws. ·

42Copy pinpoint42. In exercise 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.

43Copy pinpoint43. These Regulations were amended by Regulation I of 1970, again by Regulation I of 1971 and by Regulation I of 1978.

44Copy pinpoint44. The constitutional validity of these Regulations was challenged in P. Rami Reddy & Ors. v. State of Andhra Pradesh & Anr., (1988] 3 SCC H 433 and upheld by this Court.

SAMATIIA v. STATE(S.SAGHIRAHMAD,J.] · 459

45Copy pinpoint45. Para 3(1)(a) of the Regulation which opens with a non- obstante clause provides that a transfer of immovable property situate in the Agency Tracts by a person, whether or not such a person is a member of the Scheduled Tribe, shall be absolutely null and void. This puts a complete ban on the transfer of immovable properties in the Agency Tracts by any person whatsoever, whether he is a member of the Scheduled Tribe or not. There is, however, one exception to this rule as it is provided that such transfer shall not be null and void if the transfer is made in favour of a person who is a member of the Scheduled Tribe or is a Society registered or deemed to be registered under the Andhra. Pradesh Co-operative Societies Act, 1964, which is composed solely of members of the Scheduled Tribes. c

46Copy pinpoint46. Para 3(1)(c) provides that if a person "who intends to sell his land, is not able to sell that land either because the member belonging to the Scheduled Tribe is not willing to purchase the land or is not willing to · purchase the land on the terms offered to him, such person may apply to D the Agent or the Agency Divisional Officer or any other Prescribed Officer (who are defined iii Para 2(b) and (c) of the Regulations) for the acquisi- tion of such land by the State Government. The Agent or the Agency Divisional Officer or the Prescribed Officer, as the case may be, shali then

- take over the land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961. The land shall then vest, free from all E

encumberances, in the State Government which shall dispose of the land in the favour of member of the Scheduled Tribe or a Co-operative Society composed solely of the members of the Scheduled Tribe or "in such other manner and subject to such conditions as may be prescribed." There cannot also be a "Benami" transaction under the Regulations and a member of the F Scheduled Tribe cannot hold property in his name for the benefit of a non-tribal.

47Copy pinpoint47. Para 3(2)(a) provides that if a transfer of immovable property has G been made in contravention of Para 3(1)(a), the Agent, the Agency Divisional Officer or any other Prescribed Officer suo motu or on the application of anyone interested or on the information of a public servant, decree ejectment of the person in possession of that property claiming under such transfer. The property shall then be restored to the transferor or his heirs. H

460 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

48Copy pinpoint48. Para 3(2)(b) provides that if a transferor or his heirs are not willing to take back the property or their whereabouts are not known, the property shall be. assigned or sold to any other member of the Scheduled Tribe or a Co-operative Society composed solely of the members of the Scheduled Tribe. The Agent or the Agency Divisional Offi_cer or the B Prescribed Officer shall have a power to "otherwise" dispose it of as if it was the property at the disposal of the State Government.

49Copy pinpoint49. It may be mentioned here that Para 3(1)(b) contains a rule of presumption that if any immovable property situated in the Agency Tracts is in possession of a person who is not a member of the Scheduled Tribe, C it shall be presumed, until the contrary is proved, that the property has been acquired by that person through a transfer made to him by member of the Scheduled Tribe.

50Copy pinpoint50. Para 3A of the Regulation places two restrictions on a person intending to mortgage his property. The first restriction is that it can be mortgaged only in favour of a person who is a member of the Scheduled Tribe or to a Co-operative Society or a Land Mortgage Bank or any other bank or financial institution approved by the State Government. The Explanation appended to Para 3A(1) defines a "Bank". The other restric- tion is that while mortgaging the property, it would not be open to that person to deliver possession to the mortgagee. Clause 2 of Para 3A provide that in case the immovable property which was mortgaged is brought to sale on account of default in payment of the mortgage money or the interest payable thereon, the said property shall be sold only to a member of the Scheduled Tribe or to a Co-operative Society composed solely of members of the Scheduled Tribe. Explanation appended to this Clause specifies as to what would be treated as Co-operative Societies. It provides that if the Government is a member of any Co-operative Society, it, namely, the said Society, shall also be deemed to be a Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964.

51Copy pinpoint51. Clause 5 provides that no immovable property situate in the Agency Tracts and owned by a member of the Scheduled Tribes shall be liable to be attached and Sold in the execution of money decree.

52Copy pinpoint52. Clause 6 creates certain offences and prescribes the penalties therefor. For example, if a person acquires any immovable property in contravention of any provision of the Regulations or continues in posses-

SAMATIIA v. STATE[S.SAGHIRAHMAD,J.] 461

sion of such property after a decree for ejectment is passed, he will be prosecuted and sentenced to imprisonment for a term which may extend to one year.

53Copy pinpoint53. These Regulations indicated a departure from the normal laws relating to immovable property. Normally, an owner of the immovable property is free to transfer his property to anyone he likes. But if he possesses property in the Agency Tracts or the Scheduled Area, 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 transferred to the mortgagee but these Regulations prescribe that in no case ·shall possession be delivered to the mortgagee.

54Copy pinpoint54. It will be seen from the above that at least in two circumstances, the property of the member of the Scheduled Tribe or any other person in the Scheduled Area becomes the property of the State Government : D

(1) If a person is not able to sell his property either because a member 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 E 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 State Govern- ment.

(2) If on a decree for ejectment being passed against a person in occupation of the property belonging to a Scheduled Tribe under 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 the property or their whereabouts are not known, it would be open to the Government to assign or transfer the property to any other member of the Scheduled Tribe or otherwise dispose it of as if it was the property, at the disposal of the State Government.

55Copy pinpoint55. In all these circumstances, when the property either comes to vest in the State Government or becomes a property at the disposal of the State Government, the Government cannot, in view of the above, transfer the H

462 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A property fo 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.

56Copy pinpoint56. The possibility of the Government disposing it of to a person who is not a member of the Scheduled Tribe is totally ruled out by the Regula- B tions by providing that it, shall be sold, assigned or transferred only to tribals or their Co-operative Society. If this applies to properties which become the Government properties, how the properties which are already the Government properties could be excluded from the applicability of these Regulations? The Government has to be bound down to the Con- C stitutional scheme sought to be enforced through Regulations made by the Governor under Para 5(2) of the Fifth Schedule and cannot be permitted to transfer its own properties in favour of non-tribals so as to allow their infiltration into the Scheduled Area. The prohibition contained in Para 3(1)(a) that no parson, whether he is a member of the Scheduled Tribe or D not, shall transfer his immovable property to a non-tribal must, therefore, in its scope cover the Government, as well, which, if it possesses land in the Agency Tracts, cannot transfer it either by sale, allotment, lease or otherwise to a non-tribal. To this limited extent, it has to be treated as a "person" within the meaning of Clause 3(1)(a) of the Regulations.

57Copy pinpoint57. It is contended by the learned council for the respondent that where the property is acquired by the Government on payment of compen- sation or it becomes the property at the disposal of the Government, such property, undoubtedly, has to be disposed of in favour of the member of the Scheduled Tribe or a Co-operative Society of the Scheduled Tribes but F the Government also retains the power and choice to dispose it of in such other manner and subject to such conditions as may be prescribed. It is contended on the basis of the words "or in such other manner and subject to such conditions as may be prescribed" occurring in Para 3(1)(c) that the Government is not bound to sell the property to a member of the G Scheduled Tribe or the Co-operative Society of the Scheduled Tribes. It is contended that almost similar words have been used in Para 3(2)(b) where the property, if it is not taken back by the transferor who is a member of the Scheduled Tribe or his heirs; becomes the property at the disposal of the State Government and the State Government has the choice either to assign or sell the property to any member of the Scheduled Tribe or a H Co-operative Society of the Schedule Tribes or "otherwise dispose it of as

SAMATHA v. STATE[S.SAGHIRAHMAD,J.) 463

if it was a property at the disposal of the Government". This interpretation A cannot be accepted. The words "or in such other manner and subject to such conditions as may be prescribed" occurring in Para 3(1)(c) and the 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 other words used in those provisions. The emphasis throughout in these B Regulations has been that the property would be sold or transferred only to a member of the Scheduled Tribe or their Co-operative Societies. The Constitutional scheme which is sought to be enforced through Regulations 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 C ' I belong to members of the Scheduled Tribe or their Co-operative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone. The words "or in any other manner" in Para 3(1)(c) or the words "otherwise dispose it of as if it was a property at the disposal of the State Government" occurring in Para D 3(2)(b) have to be read in that context with the result that even if the Government intended to deal with such immovable properties "in any other manner" it could deal only in a manner which would ultimately benefit a member of the Scheduled Tribe or their Co-operative Societies. The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pr<!.desh clearly seek to implement the national E policy that the custom, culture, life-style and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal constraint to deal with the property situated in the Agency Tracts only in the manner indi- cated above, cannot itself act beyond the scope of the Regulations by saying F. that it is free to dispose of its own properties in any manner it likes. If the Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer. On account of this disqualification, the Govern~ent cannot, even G if it is not a "person" within the meaning of Para 3(1)(a), transfer, let out or allot its land or other immovable property to a non- tribal.

58Copy pinpoint58. These Regulations have been made to give effect to the power of the Governor under Clauses (a) and (b) of Para 5(2) of the Fifth Schedule H

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

A for "Peace and Good Government" in the Agency Tracts. These Regula- tions also aim at ushering in an era of social equality where the most backward and isolated people who constitute the Schedule Tribes may be rehabilitated effectively in the nation's main-stream. 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 disposal 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".

59Copy pinpoint59. The Mines and Minerals (Regulation and Development) Act, C 1957 has already been amended by insertion of Section 11(5) at the State level which provides that the Government land shall not be allotted for the purpose of mining to non-tribals. A lot of argument was raised on both sides whether this Amendment was retrospective or prospective. While it is contended on behalf of the respondents that the leases which had already D been executed or renewed prior to the Amendment or introduction of Section 11(5), would not be affected the appellants in C.A. arising out of SLP(C) Nos. 17080-81of1995 argued that such leases, including renewed leases cannot be operated.

60Copy pinpoint60. We have already held that the present scheme, set out in the Fifth E Schedule and Regulations made by the Governor in exercise of the power under Para 5(2) of the Schedule, is to sell, distribute, assign or let out the Government land only to members of Scheduled Tribes. Section 11(5) introduced in the Act only seeks to give effect to what was already contained in the Fifth Schedule and the Regulations made thereunder. In F order to set at rest the above controversy raised at various levels that the Government land could also be allotted to non-tr:bals, the Amendment was brought about in the Mines and minerals (Regulation and Development) Act, 1957 so as to make it sure that it was never the intention that the Government land could be allotted to non-tribals. The Amendment only retrates the existing position. G

61Copy pinpoint61. I am short of time as Brother Ramaswamy is retiring tomorrow. It is not possible for me to write out in detail on other points involved in the case. Since I am agreeing with Brother Ramaswamy on the findings recorded by him on other issues involved in the case, specially those H relating to forests and Conservation of Forests Act and the environmental

SAMATIIA v. STATE(PATIANAIK,J.] 465

questions, I conclude by saying that I am in respectful agreement with him. A I also agree with the ultimate directions issued in the Judgment.

62Copy pinpoint62. In view of the above, I am also of the opinion that the appeals of Samatha arising out of SLP(C) Nos. 17080-81of1995 deserve to be allowed ,and are hereby allowed while the other appeal arising out of SLP(C) No.21457 of 1993 is dismissed. B C.A. No. 4601-4602/97.

PATTANAIK, J. Leave granted.

These two appeals by special leave are directed against the judg- C ment of the Andhra Pradesh High Court dated 28.4.95 dismissing the two Writ Petitions filed by the present appellant which were registered as Writ Petition Nos. 9513 of 1993 and 7725 of 1994, by a common judgment. The appellant, a Rural Development Society of Peda Mallapuram, Sankhavaram Mandap in the State of Andhra Pradesh filed the two Writ D Petitions as Public Interest Litigation seeking issuance of writ of mandamus to terminate the mining leases in Borra Gram Panchayat area of Anantagiri Manda! which had been granted and/or renewed in favour of the private respondents inter alia on the grounds that the said leases contravened the provisions of Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959, as amended in 1970 (hereinafter referred to as the 'Regulation'), E the leases violate the provisions of the Forest Conservation Act, 1980 (hereinafier referred to as the 'Conservation Act'), and such leases are prohibited under Section 11(5) of the Mines and Minerals (Regulation and Development) Act 1957 as amended by Act of 1991 (hereinafter referred to as 'The MMRD Act'). The appellant, who was the petitioner before the .F High Court advanced the contention that under the Regulation transfer of all lands in the schedule area to a non-tribal is prohibited and the said prohibition equally applied to the government land and as such the mining leases in favour of the private respondents who are non-tribals are void. In elaborating this c.:intention it was contended that the word 'person' in G Section 3(1) of the Regulation as amended in 1970 would include the Government. Further contention of the appellant was that in view of Section 2 of the Conservation Act no forest land could be utilised for non forest purpose without the consent of the Central Government and the lease holds favour of the private respondents being the forest land and there being no consent of the Central Government the leases are invalid. H

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

A Lastly it was contended that in view of Section 11(5) of the MMRD Act the leases in favour of the private respondent who are non tribals must be declared to be void.

The Director of Mines and Geology, Government of Andhra Pradesh B who was respondent No. 2 before the High Court filed a counter-affidavit taking the stand that the leases in question in favour of the private respon- dents were prior to the Conservation Act coming into force and, therefore, the question of taking previous consent of the Central Government did not arise. On the question of alleged violation of the provisions of the Regula- tion it was stated that the prohibitions and restrictions in the Regulation C are not intended to apply to the Government land and there was no bar under the Regulation for the Government to grant mining leases in favour of the non-tribals. On the question of applicability of Section 11(5) of the MMRD Act it was contended that the said provision is prospective in nature and no mining lease has been granted after enforcement of Section D 11(5) of the MMRD Act in favour of any non-tribal. Respondent No. 4, the Forest Officer filed the Counter affidavit stating that the Borra forest black was notified as reserve forest and some of the respondents have encroached into the reserved forest area and to that extent their operations are illegal. The private respondent No. 13 before the High Court also filed a counter-affidavit adopting the stand taken by respondent No. 2. The said respondent No. 13 was a transferee from the original lessee. The other lessee-respondents also filed affidavits adopting the stand taken by respon- dent No. 13.

The High Court by the impugned judgment came to the conclusion that the word 'person' in Section 3(1) of the Regulation does not include the Government and as such the government is not prohibited from transferring the government land in favour of non-tribals within the scheduled area. According to the High Court this conclusion is irresistible from the fact that in order to prohibit grant of mining lease in favour of the non-tribals within the scheduled area Section 11(5) of the MMRD Act was introduced in the year 1991. But the said provisions is prospective in nature and would not apply to the existing leases. So far as the contention of applicability of the Conservation Act the High Court came to the conclusion that the said Act applies to the reserved forest and since it is not established as to the extent of the land covered by the mining leases

SAMA'IHN v. STATE [PATIANAIK, J.) 467

which form a part of the reserved forest and since the joint survey conducted indicate that there is no lessee who is 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 Conservation Act cannot be gone into. The High ·Court in the impugned judgment has also come to the conclusion that prior approval of the Central Government under Section 2 of the Forest Conservation Act is not required where the land in question has already broken in pursuance of a lease and in support of this conclusion reliance has been placed on the decision of this Court in State

- of Bihar v. Banshi Ram, (1985] 3 SCC 643. The aforesaid view in Banshi Modi's case appears to have not been approved by the Court in the later cases : Ambika Quany Works v. State Of Gujarat, (1987] 1 SCC 213. Further c in view of the decisions of this Court in S. Nageswaramma's case, Supreme Court Monitoring Committee's case and Godavannan's case, the High Court committed error in relying upon the ratio of Bakshi Ram Modi's case. The· High Court, therefore, observed that the Writ Petitions may D approach the Competent Authority in that regard seeking necessary relief and on such petitions being filed the appropriate authority would pass appropriate order bearing in mind the provisions of Section 2 of the Conservation Act. With these. conclusions the Writ Petitions having been dismissed the present appeals by special leave have been preferred. E Though the contentions before the High Court were limited to the aforesaid extent as indicated but before this Court the horizon was expanded and Dr. Rajiv Dhawan, learned senior council appearing for the appellant raised several contentions in assailing the validity of the continuance of the mining leases which according to the learned counsel are situated within the scheduled area. These two appeals initially had been heard by a Bench of two judges but later on in view of the question of law raised as well as in view of certain divergence of views, has been placed before a three Judge Bench and the matter had been re-argued.

It has been averred before this Court that the appellant Society was started in the year 1990 at the request of the local tribes of Peda Mal- lapuram area and the main objects of the society are implementation of various welfare schemes of the Government and creating awareness among tribal people of their rights and duties and protection of ecological balance and imparting of environmental education in the tribal area. The society H

468 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A operates in the Borra reserved forest area which was a part of the domain of Raja of Jaipur before independence. Within the forest area the tribal villagers occupy the land for cultivation and there are about 230 families settled in 14 villages occupying 436 acres within the enclosures which are - threatened of eviction by the mining operators. It may be noticed that this assertion was not there in the Writ Petition filed before Andhra Pradesh B High Court. The further assertion of facts in this Court is that within Anantgiri Manda! there are 230 families of tribals and they occupy roughly 800 acres and yet they are also threatened to be evicted by mining Op11fators. The appellant further asserts that the Borra forest area is a scheduled area in Vishakhapatnam District of Andhra Pradesh and it lies in Anantgiri hills. The Borra caves are of unique occurrence and the entire area is rich in mineral wealth, particularly mica and calcite. It is averred that the mining activity in the said area has started since 1946 and the said mining operations are being carried on in the reserved forest area, not- withstanding the prohibitions contained in different laws as already stated, and the State of Andhra Pradesh has not taken any initiative in stopping the mining activities which has resulted human hazards to the peaceful living of the tribal people and which affects the ecology and environment of the area and, therefore the same should be prohibited by issuance of mandamus. In the grounds taken before this Court in these Special Leave Petitions it has been urged that under the amended Section 3(1) of the E Regulations transfer of immovable property situated in the schedule area to non-tribal is prohibited and the word 'person' used in Section 3(1) includes the government and as such the leases contravened Section 3(1) of the Regulation. The further ground taken is that under Section 2 of the Conservation Act without the prior approval of the Central Government F the State Government could not have granted mining leases within the forest area as mining obviously is a non-forest purpose. The private respon- dent No. 12, who is the Managing Director of the Company, filed the counter-affidavit taking the positive stand that the mining leases held by them do not form part of the scheduled area and further the leases have G been granted much prior to the amended provisions of the Regulation as well as much prior to the coming into force of the Conservation Act and, therefore, are not hit by any prohibitions and restrictions contained in those provisions. Respondent No. 19 has filed the counter-affidavit taking the stand that the lease has been granted in favour of Shri M. Laxini Narainan on 17.11.1984 and certain other leases had been granted in H Anantgiri Mandal to said Shri M. Laxini Narainan on 24.1.1986. The