SAMATHA v. STATE OF ANDHRA PRADESH AND ORS.

SAMA1HA v. STAIB[PAITANAIK,J.] 469

transfer of mining leases from the original lessee was granted by the appropriate authority under the provisions of the MMRD Act and the Mineral Concession Rules framed thereunder and there has been no violation of any Act or Regulation in allowing such mining activities. It has also been stated that the mining activity does not encroach upon any forest area or reserved forest area and nowhere has the petitioner provided any factual foundation for allegation to demonstrate that any part of the land held by respondent No. 19 is within any forest land. And in the absence of such factual metrix it is not possible to hold that there has been violation of Section 2 of the Conservation Act. It has also been averred by the respondent that the leases do not .destroy the ecological balance and do

- not disturb the flora and fauna and the Government has granted the mining leases only after complying with the statutory requirements. On the ques- tion of interpretation of the provisions of the Regulation it has been stated that the word 'person' in Section 3(1) does not include the Government and therefore, the provisions of the Regulation have no application to the Government land. In paragraph 20 of the counter-affidavit it has been reiterated :

''There is no averment by the petitioner that this respondent has been in possession of any forest area or the area earmarked for the reserve forest. Therefore the statutory ban in Section 2 of Forest (Conservation) Act is not applicable to the leases granted to this respondent company." ·

The said assertion has also been repeated in paragraph 25 of the Counter-affidavit. Several private respondents have also filed counter-af- fidavit in this Court more or less taking similar stand and it is therefore, not necessary to repeat the same. But it would be appropriate to notice the stand taken by the State of Andhra pradesh and its officials who have been arrayed as respondent Nos. 1 to 4. The State in its affidavit have indicated that the mining leases which are in dispute had been much prior to the coming into force of the Conservation Act of 1980 and, therefore, there has been no infraction of the aforesaid Act. On the question of applicability of the provisions of the Regulation it has been stated that the Government is not 'person' within the meaning of Section 3(1)(a) of the Regulation and the Government being the sole owner of the land has the right to transfer the same to any individual/company. With regard to the activities of the appellant-society it has been averred that the society is working for its selfish ends and is mis-guiding the tribals who are peacefully H

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A living and tribals are unnecessarily dragged into litigation. It has also been stated that the areas which are under occupation of the tribals have been surveyed and the said areas have been deleted from the mining leases and, therefore, the assertion that the tribals are being threatened by the mining operators from being dispossessed is not correct. It has also been averred that the mining activities are on the exposed mineral deposit and no extensive mining has been taken in the area damaging the forest. With regard to the benefits obtained by the State on account of such mining activities, it has been stated that not only it has provided employment opportunity to the local tribals but also encourages mineral based in- dustries in the district which provides good opportunity to the educated unemployed. The State in its affidavit has also averred that all the mining leases were granted in accordance with the prescribed law and there is no possibility of endangering the Borra caves by the alleged mining activities. - The State has further stated that after coming into force of Section 11(5) of the MMRD Act no mining leases within the scheduled area has been granted in favour of any non-tribal in contravention of the aforesaid ·D provisions of the MMRD Act. It has also been stated that every care has been taken by the Government to protect the interest of the tribals and to ensure that there is no blasting in the mining area to rehabilitate the affected people. The State in its affidavit has also indicated as to which mine continues to be operative and which is not operative as on the date of the affidavit. E Dr. Dhawan, the learned seruor counsel appearing for the appellant contended that the history of the tribal areas traced from the administra- tion under the British rule to the inclusion of Schedule V in the Constitu- tion conferring a special power on the Governor to frame Regulation for peace and good government in the area would clearly indicate that there should not be any allotment of land to the non-tribals within the tribal area, be it the government land or land belonging to the tribals, which in turn would accord responsibility to the tribals for the economic development of the area. According to the learned senior counsel one of the purposes for which Schedule V was engrafted in the Constitution conferring power on the Governor and not on the respective legislatures of the States for the administration of the tribal area is to ensure distributive justice, especially of land and that purpose will be frustrated if government land within the tribal area is allocated in favour of non-tribals, whether it is for the purposes of mining or for any other purpose. It is, therefore, urged that this purpose should be borne in mind in. interpreting Regulation framed by

SAMATIIA v. STATE[PATTANAIK,J.] 471

the Governor in exercise of power conferred upon him under Schedule V A to the Constitution. The learned senior counsel urged that the term 'peace and good government' should be given a wide interpretation and the expression 'regulate the allotment of land to members of Schedule-Tribes in such area' in Schedule V(2)(b) should be construed to mean that the Governor should frame regulation ensuring that land does not pass out from tribals and the land allotments are made exclusively to tribals and the distribution of land amongst them inter se can be regulated. The learned senior counsel further urged that the provisions of the Constitution itself mandate an obligation on the Governor to frame regulation prohibiting transfer of land of all category within the schedule area in favour of a non-tribal. According to Dr. Dhawan, if the expression 'person' used in first part of Regulation 3(1)(a) is interpreted to include the State, thereby connoting that the government land also within the scheduled area cannot be transferred in favour of a non-tribal then the very purpose of conferring power on the Governor for administration of tribal area could be achieved and such an interpretation would not only prevent the exploitation of tribals from non-tribals but would also advance the interest of the tribals and would secure substantive distributive justice for the tribals. According to the learned senior counsel appearing for the appellant the regulations and statutes affecting the tribal regime must be given a purposive inter- pretation so that the raison d'etre of the regime is not defeated. So far as the Conservation Act is concerned, the counsel argued that in view of the embargo contained in Section 2 of the Conservation Act prier permission of Central Government not having been obtained the mining activities within the forest area cannot be permitted to be continued. In relation to the provisions of the Environment Protection Act, the learned senior .counsel contended that the Central Government is under a statutory duty to protect the environment and co-ordinate the activities of the State Government under the Environment Protection Act of 1986 and such statutory obligation not having been discharged by the Central Government and the mining activities within the schedule are a being hazardous to human health this Court should compel the Union Government to perform its statutory obligation. So far as the prohibition under Section 11(5) of G MMRD Act is concerned, it is contended by Dr. Dhawan, learned senior counsel appearing for the appellant that Section 11(5) in the MMRD Act is merely in the nature of clarification to the provisions of Section 3(1)(a) of the Regulation and in view of such provision the mining activities after coming into force of the aforesaid provision cannot be permitted to be continued. Let H

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

A me now examine the contentions raised to find out, how many of them would be sustainable. Administration of Tribal areas under the British Rule and the debates in the Constituent Assembly in relation to Atfministration of Tribal Area, leading to engraftment of Schedule Vin the Constitution -

The Indian Statutory (Simon) Commission in its report in 1930 B indicated that these tribal areas covered 1,20,000 square miles with a population of about eleven million. These areas are located mostly in Bihar, Orissa, Andhra Pradesh, Madhya Pradesh, Bengal and Assam. Even During the British rule, because of the social and economical conditions of these tribal people special laws were made applicable in those areas. In C the book "THE FRAMING OF INDIA's CONSTITUTION" - A study by B. Shiva Rao, it has been stated that there were two dangers to which subjection to normal. laws would have specially exposed these tribal people, and both arose out of the fact that they were primitive, simple, unsophis- c ticated and frequently improvident. There was also a risk of their agricul- tural land passing to the more civilised section of the population, and the D occupation of the tribals was for the most part agricultural and secondly they were likely.to get into the "wiles of the moneylender". It was thus the primary aim of the government policy then to protect these people from these two dangers and preserve their tribal customs and this was achieved by prescribing special procedures applicable to these backward areas. The E Scheduled Districts Act, enacted in 1874 was the first measure adopted to deal with these areas and the said Act enabled the executive to extend any enactment in force in any part of the British India to a "Scheduled district" with such modifications as might be considered necessary. Thus, the execu- tive had the power to exclude these areas from the normal operation of ordinary law and give such protection as they might need. Even in Mon- F tagu-Chelmsford I Report of 1918 it was suggested that the political reforms contemplat~d for the rest of India could not apply to these backward areas where the people were primitive and thus these backward tracts were to be excluded'from the jurisdiction of the reformed Provincial Governments and administered personally by the heads of the Provinces. In the Govern- G ment of India Act 1919 these tracts were divided into two categories and some of the areas were wholly excluded from the scope of the reforms. Therefore, neither the Central nor the Provincial Legislature had the power to make laws applicable to these areas and the power of legislation was vested in the Governor acting with his Executive Council, the Ministers being excluded from having any share in the responsibility for the ad- H ministration of these areas. Until the Simon Commission's report, the

SAMATIIA v. STATE[PATIANAIK,J.] 473

primary object and the policy of the government in relation to the tribal A areas was to give the inhabitants of the tribal areas security of land tenure, freedom in the pursuit of their traditional means of livelihood, and a reasonable exercise of their ancestral customs. The Simon Commission, however, realised that isolation of these people from the main currents of progress would not be a satisfactory long term solution and, therefore, it would be nece~sary to educate these people to become self-reliant. As the B Provincial Government was not inclined to devote special attention for the upliftment of these tribal people mostly because of the fact that backward tract was a deficit area and in view of the magnitude and complexity of problem the Commission had recommended that the responsibility for the backward classes would be adequately discharged only if it was entrusted to the Centre. But at the same time, it was also recognised that it would not be a practicable arrangement if centralisation of administrative authority in these areas led to a situation in which these areas would be separated from the Provinces of which they were an integral part. The Commission, therefore had suggested that the Central Government should use the Governors for administration of these areas and 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. This proposal, however, was not adopted in the constitutional reforms of 1935. Under the Gov,ern- ment of India Act of 1935, these backward areas· were classified as excluded areas and partially excluded areas. The excluded areas in Assam, Madras, Bengal, North-West Frontier Province were placed under the personal rule of the Government acting in his discretion and while the partially excluded areas were within the field of ministerial responsibility and the Governors exercised a special responsibility in respect of the administration of these areas and they had the power in their individual judgment to overrule their Ministers if they thought it to do so. No Act of the Federal or Provincial Legislature would apply to any of these areas but Governors had the authority to apply such Acts with such modification as they considered necessary, as is apparent from Sections 91 and 92 of the Government of India Act 1935. The Cabinet Mission's statement of May 16, 1946 mentioned about the requirement of the special attention of the Constituent Assembly in respt:ct of these tribal areas. G Vth Schedule of the Constitution as well as paragraph 5 of the said Schedule which confers power on the Governor to make Regulations for the peace and good government in any area in the State which is a schedule area nowhere indicates that there should be no alienation of any land in favour of a non-tribal within the said area. The aforesaid provision H

474 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R. •• A is an enabling provision conferring power on the Governor to frame Regulation for peace and good government and the Regulation in question may provide for prohibiting or restricting transfer of land by or among the members of the Scheduled Tribes, regulate the allotment of land to mem- bers of the Scheduled Tribes and regulate the carrying on business as money-lender by persons who lend money to the Scheduled Tribes. It has, therefore, become necessary to find out from the Debates in the Con- stituent Assembly as to whether the Constitution makers at all intended to prohibit alienation of any land in favour of a non-tribal within the tribal area. In course of arguments while placing the Debates in the Constituent Assembly Dr. Rajiv Dhawan, learned senior counsel at one point of time had advanced an extreme argument that all lands within the tribal area belong to the tribals and only during the Bricish regime the ttibals were denied of their rights over the lands and, therefore, this Court \.ould be justified in holding that the lands within the entire tribal area belohg only to them and the State has no authority or power in respect of the said land. In support of the said contention the learned senior counsel placed reliance on a decision of the Australian Court in the case of Mabo and Others v. The State of Queensland, reported in Commonwealth Law Reports Vol. 175 (1992) at page 1. The learned senior counsel had argued that what has been held by the High Court of Australia in the aforesaid case, namely, Aborigines had the ·title to the land and it never got extinguished by annexation by Crown or by the application of common law in Australia, should apply to the lands within the tribal area in India. But, however, at later point of time the learned counsel did not persue the said contention and, therefore, we have to examine and find out the correctness of the submission as to whether under the Constitutional Scheme there has been a prohibition for alienation of any land within the tribal area in favour of F a non-Scheduled Tribes. On going through the Constituent Assembly Debates and the book "The Framing of India's Constitution - A study by B. Shiva Rao as well as b. Shiva Rao's The Framing of India's Constitution Volume III, it appears that on account of the Study already made by the Britishers and several reports obtained prior to Independence, the ques- tion of administration of tribal areas did engage the attention of the G Constitution Assembly for a considerable period. The Constituent Assemb- ly had formed two committees, one for the tribal people of Assam and other for the excluded and partially excluded areas in Provinces other than Assam. We are really concerned with the second Committee which had examined the problems of the tribal people in all other parts of the country excepting Assam. The Committee in fact had suggested that the solution

SAMATHA v. STATE(PATIANAIK,J.] 475

to the problem of backward areas lies in developing the area and not in isolating the same. The Committee had also suggested that it should be the responsibility of the Centre to draw up the schemes for the development of these areas and ensure that such schemes were duly implemented by the States. But the said report could not be considered by the Constituent Assembly having been received at a late stage. The Drafting Committee of the Constitution, however, considered the suggestion of the Advisory Com- mittee and drafted the Vth Schedule of the Constitution. We are in the present case really concerned with Clause 6 dealing with alienation and allotment of lands which is extracted hereinbelow :

6. Alie11ation and allotment of lands to non-tribals in scheduled areas: (1) It shall not be lawful for a member of the Scheduled •Tribes to transfer any land in a scheduled area to any person who is not a member of the Scheduled Tribes;

(2) No land in a scheduled area vested in the State within which such area is situate shall be allotted to, or settls:d with, any person who is not a member of the Scheduled Tribes except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council for the State.

Clause 7 of the Schedule V deals with money lending which is extracted hereunder :

"7. Regulatio11 of mo11ey - lending in scheduled areas : The Governor may, and if so advised by the Tribes Advisory Council for the State shall, by public notification direct that no person shall carry on business as a money-lender in a scheduled area in the State except under or in accordance with the conditions of a licence with the conditions of a licence issued by an officer authorised in this behalf by the Government of the State and every such direction shall provide that a breach of it shall be an offence, and shall specify the penalty with which it shall be punishable." G Clause 9 of Schedule V deals with Governor's power in extending the provision to other areas which is extracted hereunder :

"9. Application of Pait II to areas other than scheduled areas : (1) The Governor may, at any time by public notification, direct that H

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

A all or any of the provisions of this Part shall on and from such date as may be specified in the notification apply in relation to any area in the State inhabited by members of any Scheduled Tribe other than a scheduled area as they apply in relation to a scheduled area in the State, and the publication of such notification shall be B conclusive evidence that such provisions have ·been duly applied in relation to such other area. ·

(2) The Governor may by a like notification direct that all or any of the provisions of this Part shall on and from such date as may be specified in the notification cease to apply in relation to any c area in the State in respect of which a notification may have been issued under sub-paragraph (1) of this paragraph."

See the framing of India's Constitution by B. Shiva Rao Volume (III). D We are really concerned with Clause 6 of the Draft Constitution dealing with the alienation and allotment of lands to non-tribals in the scheduled areas. The Draft Constitution, therefore, had put two restric-

E tions, namely, a member of a Scheduled Tribe was not entitled to transfer land within the scheduled area to a member of non-scheduled tribe, and so far as the land vested in the State is concerned, the prohibition was that - the. said land belonging to the State should not be allotted or settled in favour of a non-scheduled tribe except in accordance with the Rules made in that behalf by the Governor in consultation with the Tribe's Advisory Council. To the aforesaid Draft several amendments were proposed by F several Speakers. So far as paragraph 6 of Schedule V of the Draft Constitution is concerned, the proposal in the draft that the land belonging to the State should not be allotted to or settled with any person who is not a member of Scheduled Tribe was rejected and, therefore, in the final form in Schedule V there is no such indication that even the government land within the Scheduled area should not be allotted to a non-Scheduled Tribe G person. B. Shiva Rao in his book "THE FRAMING OF INDIA'S CON- STITUTION - A STUDY, dealing with the Scheduled and Tribal Areas has stated that for nearly a century under British rule special laws were applicable to what were called 'backward areas' and two dangers were there to which subjection to normal laws would have specially exposed these people, and both arose out of the fact that they were primitive people,

SAMATHA v. STATE[PATIANAIK,J.] 477

simple unsophisticated and frequently improvident. There was a risk of their agricultural land passing to the more civilized section of the popula- tion, and the occupation of the tribals was for the most part agricultural, and, secondly, they were likely to get into the 'wiles of the moneylender". The primary aim of government policy then was to protect them from these two dangers and preserve their tribal customs : and this was achieved by prescribing special procedures applicable to these backward areas.

After going through the Constituent Assembly Debates, the Draft Constitution in relation to Schedule V and the final Constitution as it emerged, after amendments were brought about, it appears that it was not the intention of the Constitution Makers to prohibit alienation of the land vested in the State within the scheduled area in favour of a non-Scheduled Tribe person. On the other hand, though it was in paragraph (2) of the Draft Constitution of Schedule V but it stood deleted while bringing the Vth Schedule in its final form. In this view of the matter we are unable to accept the contention of Dr. Rajiv Dhawan, learned senior counsel that the framers of the Constitution intended to prohibit alienation of the government land in favour of non- Scheduled Tribe person within the schedule area which has been engrafted in Vth Schedule of the Constitution.

CONSTITUTIONAL MANDATE AS ENGRAFTED IN ARTICLE 46, E ARTICLE 39(b) AS WELL AS THE DECLARATION 'RIGHT TO DEVELOPMENT' ADOPTED BY UNITED NATIONS - IN RELATION TO PROHIBITION OF ALIENATION OF GOVERNMENT LAND WI.THIN THE TRIBAL AREA IN FAVOUR OF A NON-TRIBAL PER- SON F As indicated in the earlier part of this judgment vast track of land lie within the tribal area which is rich in mineral resources and the entire mineral resources of the country lie within the schedule area of different States. In interpreting the provisions of the Regulation and the Constitu- G

- tional mandate engrafted in Fifth Schedule of the Constitution as well as different other Articles of the Constitution, it must be borne in mind that the interpretation should subserve the main object, namely the develop- ment of the schedule area and the protection of the tribal people from exploitation of the non-tribal people. It is in this prospective Article 46 and 37(b) of the Constitution have to be looked into. H

478 SUPREMECOURTREPORTS [1997]SUPP.2S.C.R.

A Article 46 of the Constitution no doubt mandates the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and protect them from social injustice and all forms of exploitation. The said Article embodies the concept of 'distribu- B tive justice' which connotes the removal of economic inequalities and rectifying the injustice .resulting from dealings or transactions between unequals in society. It means those who have been deprived of their properties by unconscionable bargaining should be restored to their property. By taking recourse to this Article the law invalidating transfers of land belonging to a member of the Scheduled Tribes and restoration of such land to the transferer was held constitutionally valid. Similarly, when ( Article 39(b) of the Constitution enjoins upon the State to have its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, what, it connotes is a duty on the State for building of a welfare State and an egalitarian social order. The object is that the basic need of a common man must be fulfilled and the State should endeavour to change the structure of the society. The aforesaid provision no doubt, may support a case of nationalisation of material resources but by no stretch of imagina- tion it can be said that it enjoins upon the State to exploit the mineral ( resources within the Scheduled area by itself or through the Scheduled E Tribes alone. The declaration of 'Right to Development' adopted by the United Nations and ratified by India no doubt casts a responsibility on the State to promote and protect social and economic order for development of all people and it has become a States' responsibility to create conditions favourable to the realisation of the right to development. In other words it is the State's responsibility to ensure development and eliminate the obstacles to the State development. It is the States' responsibility to eradi- cate social injustice. It is the State's responsibility to see the upliftment of the tribals within the Scheduled areas. There possibly cannot P<: any dispute with the proposition that the State should formulate its policies and laws so that the neglected tribals within the Scheduled areas get equal opportunity with their counterparts in the other sophisticated parts of the State and State should be empowered to make laws for protection of these tribals from being exploited by the non-tribals. State should take all effec- tive steps so as to eradicate inequalities.

H The aforesaid scheme of the Constitution in cur considered opinion

SAMA1HA v. STATE[PATIANAIK,J.] 479

does not in any manner suggest that alienation of Government land within A the schedule area was intended to be prohibited in favour of a non-tribal person.

ARTICLE 244AND FIFTH SCHEDULE OF THE CONSTITUTION:

B Article 244( 1) of the Constitution makes the provisions of the Fifth Schedule applicable to the Schedule areas and Scheduled Tribes in all State other than Assam and Meghalaya. Article 244(1) of the Constitution read with Fifth Schedule vests with the Governor of the State, the entire governmental power i~ respect of the schedule areas within the State. The framers of the Constitution found the necessity of vesting such power on C the Governors of the State as the people of the Scheduled areas were culturally backward and their social and other customs are different from the rest of the country. Which area is the Scheduled area within the State is determined by the President by an order. By virtue of the Fifth Schedule of the Constitution the Governor is authorised to direct that any Act of D Parliament or of the Legislature of a State shall not apply to a Scheduled area or shall apply only subject to exceptions and modifications. The Governor is also authorised to make regulations to prohibit or restrict transfer of land by or amongst the members of the Scheduled Tribes, regulate the allotment of land and regulate the business of moneylending and all such regulations by the Governor have to be assented to by the E President.

Section 5(2) of Schedule Vindicates the amplitude of the Governor's power to make regulation for peace and good government in the Scheduled area in a State. It also stipulates the field over which regulations can be framed by the Governor as contained in Clauses (a) to (c) thereof. The Governor is the sole judge to decide as to what would be the regulation which would be necessary for the peace and good government of the area in question. The ambit of the power of Governor is not restricted to the entries in the Vllth Schedule and the Governor is empowered even to over-ride an act of Parliament or of a State Legislature so far as its applicability to the Scheduled area is concerned. Clauses (a) to (c) of Section 5(2) of Schedule V indicate that the Governor may frame regula- tion prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes within the Scheduled area, regulate the allotment of lands to the members of the Scheduled Tribes in the area; and regulate H ' \

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

A the carrying on of business as money-lender by persons who lend money to the members of the Scheduled Tribes in such area. It would thus appear, J as the Britishers during the British rule, were really concerned to save the tribals of the area from being exploited by the non-tribals, after coming into force of the Constitution, smiliar power was conferred on the Gover- B nor to make regulation for achieving the same object, namely, to save the tribals belonging to the scheduled area from the exploitation of non- tribals. Any Regulation framed by the Governor required to be interpretted bear- ing in mind the aforesaid objective with which the Constitution conferred power on the Governor under the Fifth Schedule.

C THE ANDHRA PRADESH SCHEDULE AREA LAND TRANSFER REGULATION 1959 - WHETHER REGULATION 3(1) IS CON- TRAVENED BY GRANT/RENEWAL OF MINING LEASES IN FAVOUR OF NON-TRIBALS.

This Regulation has been framed by the Governor in exercise of D power conferred upon him under Paragraph 5(2) of the Fifth Schedule to the Constitution. The original Regulation is Regulation 1 of 1959 which was subsequently amended in 1970. The original Regulation prior to its amend- ment so far as transfer of immovable property by members of Scheduled Tribes is concerned, as contained in Regulation 3 stood thus : E "3. (1) Notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a member of a Schedule Tribe, shall be absolutely null and void unless made -

F (i) iii favour of any other member of a Scheduled Tribe or a registered society as defined in clause (f) of Section 2 of the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or

(ii) with the previous sanction of the State Government, or G subject to rules made in this behalf, with the previous consent in writing of the Agent of any prescribed officer.

Explanation. - The expression "transfer" in this section includes a sale in execution of a decree and also a transfer made by a H member of a Scheduled Tribe in favour of any other member of a

SAMA1HA v. STATE[PATIANAIK,J.] 481

Scheduled Tri15e benami for the benefit of a person who is not a A member of a Scheduled Tribe.

(2)(a) where a transfer of immovable property is made in :::$. contravention of sub-section (1), the Agent, the Agency Divisional Officer or any other prescribed officer may, on application by any ---....-. one interested, or on information given in writing by a public B servant, or su,o moto decree ejectment against any person in possession of the property claiming under the transfer, after due notice to him in the manner prescribed and may restore it to the transferor or his heirs.

I ' (b) If the transferor or his heirs are not willing to take back c the property or where their whereabouts are not known, the Agent, the Agency Divisional Officer or prescribed officer, as the case may be, may order the assignment or sale of the property to any other member of a Scheduled Tribe or a registered society as defined in clause (b) of section 2 of the Madras Co-operative D Societies Act, 1932 (Madras Act VI of 1932), composed solely of members of the Scheduled Tribes, or otherwise dispose of it, as if it was a property at the disposal of the State Government.

(3)(a) Subject to such conditions as may be prescribed, an E appeal against any decree or order under sub- section (2) shall lie within such time as may be prescribed --

(i) if the decree or order was passed by the Agent, to the State Government; F (ii) if the decree or order was passed by the Agency Divisional Officer, to the Agent; and

(iii) if the decree or order was passed by any other officer, to the agency Divisional officer or Agent, as may be prescribed. G (b) the appellate authority may entertain an appeal on sufficient . ' cause being shown after the expiry on the time limit prescribed ""' thereof."

After the amendment in 1970 Section 3(1) reads thus : H

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

A "(a) Notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not .such person is a member of Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of Scheduled tribe or a society registered or B deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964), which is composed solely of members of the Scheduled Tribes.

(b) Until the contrary is proved, any immovable property situated c in the Agency tracts, and in the possession of a person who is not a member of a Scheduled Tribe, shall be presumed to have been acquired by such person or his predecessor in possession through a transfer made to him by a member of a Scheduled Tribe.

D (c) Where a person intending to sell his land is not able to effect such sale, by reason of the fact that no member of a Scheduled Tribe is willing to purchase the land on the terms offered by such person, then such person may apply to the Agent, the Agency Divisional Officer or any other prescribed officer, for the acquisi- tion of such land by the State Government, and the AE;ent, Agency E Divisional Officer or the prescribed officer, as the. case may be, may, by order, take over such land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961 (Act X of 1961), and such land shall thereupon vest in the State Government free all encumbrances and shall be disposed of in favour of members of the Scheduled Tribes or a society registered or deemed to be registered under the Andhra Pradesh Co-opera- tive Societies Act, 1964 (Act 7 of 1964) composed solely of mem- bers of the Scheduled Tribes or in such other manner and subject to such conditions as may be prescribed."

So far as the regulation prior to its amendment in 1970 is concerned, a plain reading thereof clearly indicates that the Governor has framed the regulation as a regulatory measure putting some embargo on the power of transfer of a member belonging to Scheduled Tribe in respect of his

SAMAIBA v. STAIB[PAITANAIK,J.] 483

immovable property. The said embargo enabled a member of a Scheduled A Tribe to transfer the immovable property only in favour of another member of a Scheduled Tribe or in favour of a co-operative society composed solely of members of a Scheduled Tribe. If the transfer was intended to be made in favour of a non-Scheduled Tribe member then it could be so made but only with previous sanction of the State Government or with the previous B ~ consent in writing of the agent or any prescribed officer subject to the rllles made in that behalf. Thus immovable property even belonging to a Scheduled Tribe could be lawfully.transferred in favour of a non-Scheduled Tribe member but only with previous sanction of the State Government. -· Under the pre-amended provisions, therefore question of any felter on the powers of the State Government in transferring government land in favour c of a non-tribal did not arise at all. The question that arises for considera- tion is whether there has been any change under the provisions of 1970 and has there been a total prohibition of transfer of. any land in favour of a non-Scheduled Tribe person in the Agency tracts. D Dr. Rajiv Dhawan, learned senior C-Ounsel appearing for the appel- lant in this context advanced his argument that the entire object of the Amendment Act of 1970 was to prohibit totally transfer of any land in favour of a non-tribal member within the Agency tract and accordingly the word 'person' in Section 3(1)(a) of the regulation after the. amendment would bring within its sweep the State Government though ordinarily the expression 'person' may not bring within its sweep the State Government. According to Mr. Dhawan, learned senior counsel appearing for the ap- pellant the word 'person' must be given the widest interpretation so as to bring within its sweep the State Government which would be consistent with the very object for which the amendment was bro~ght into force so that the integrity of the tribal regime is maintained. On being faced with the difficulties in giving same interpretation to the word 'person' used in Section 3(1)(a) throughout the learned counsel urged that it is permissible to give a_ different meaning to the same word used in the same statute depending upon the object sought to be achieved by the statute and, therefore, it would be within the principles of interpretation to interpret G "' the word 'person' occuring in First Part of Section 3(1)(a) to include the State Government whereas the same word 'person' used in the latter part of Section 3(1)(a) may be interpreted to mean 'an individual'. In support of this contention the learned counsel relied upon the decisions of this Court in the case of State of West Bengal v. Union of India, [1964) 1 SCR H

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

A 371,Printers (Mysore) Ltd. &Anr. v.Asstt. Commercial Tox Officer& Others, [1994] 2 SCC 434; Commissioner of Income Tax, Bangalore v. J.H. Gotla Vadagiri, [1985] 4 SCC 343 and Dr. M. Ismail Farnqui and Others Etc. Etc. v. Union of India & Ors. Etc. Etc., [1994] 6 SCC 360. The learned counsel also urged that this Court has accepted the principle that a wide interpreta- B tion has to be given to the meaning of immovable property while interpret- ing the provisions of the regulation in order to fulfil the purpose of the tribal area regulation in the case of P. Rami Reddy & Ors. Etc. v. State of Andhra Pradesh & Anr. Etc., [1988] Supp. 1 SCR 443, Lingappa Pochanna Appelwar v. State of Maharashtra & Anr. Etc., [1985] 1 SCC 479 and Manchegowda and Others v. State of Kamataka and Others, [1984] 3 SCC C 301, and therefore, the same rules of construction of giving a wider inter- pretation to the expression 'person' used in Section 3(1)(a) of the regula- tion should be adhered to.

Mr. Sudhir Chandra, learned counsel appearing for the respondent, D on the other hand contended that the regulation in question prior to its amendment does not prohibit transfer of land by any person in favour of non-Scheduled Tribe person but merely postulates that such a transfer must be with the consent of the competent authority. Thougli after the amendment in 1970 a more stringent measure has been adopted but all the restrictions are in relation to the land belonging to a Scheduled Tribe. A E statutory presumption has been brought in so that whenever within the Agency tract any immovable property is found to be in possession of a non-Scheduled Tribe person then burden would be on the non-Scheduled Tribe person to establish that he has not come in possession of the land by way of a transfer from the Scheduled Tribe person. The aforesaid p stringent provisions has obviously been made to achieve the main objective to save the tribals from the exploitation of non-tribals. But by no stretch of imagination the restrictions contained in regulation 3(1) even after its amendment can be said to apply to the State Government in respect of the government land. According to the learned counsel Mr. Sudhir Chandra if interpretation as to the word 'person', as, contended by Dr. Rajiv Dhawan, G learned senior counsel is accepted then it would lead to absurdity and the provisions of Section 3(1)(a) would be meaningless. The learned counsel further contended that there is intrinsic evidence in clause (a) itself to hold that the word 'person' does not include State. Lastly, the learned counsel urged. that bearing in mind the object with which the constitution has conferred power on the Governor to frame regulatic:m and the object with

SAMA1HA v. STATE[PATIANAIK,J.) 485

which the Governor has framed the regulation, there is no imperative to construe the word 'person' in Section 3(1)(a) of the regulation to include the State Government. Such an interpretation according to the learned counsel for the respondents would go against the concept of upliftment of the tribals within the tribal area inasmuch as even the State Government would be denuded of its power of transferring government land in favour of any non-Scheduled Tribe person or organisation even for the purpose of setting up of a hospital or any other philanthropic purpose. When mines and minerals lie in abundance mostly in the tribal areas and vest in the

-- . State Government, if the embargo contained in regulation 3{1)(a) applies to the State Government by interpreting the word 'person' to include the State Government then there cannot be any exploitation of mineral resour- C ces in the country unless it is done either by the State itself or through the Scheduled Tribe person and such interpretation would be grossly detrimental to the general upliftrnent of the tribal people and, therefore, the counsel suggests that such an interpretation would not be given to the word 'person' in regulation 3(1)(a). D

In view of the rival submissions at the Bar the crucial question arises for consideration is how the word 'person' in first part of regulation 3(1)(a) is to be interpreted? In other words the very word 'person' used in regulation 3(1)(a) itself whether should be interpreted differently and whether such an interpretation is necessary to subserve the object for which the regulation has been brought forward. As has been stated earlier, the history of legislation as discussed, treating the tribal areas different from the other areas is basically intended to save the tribal people from being exploited by the non-tribals. It is with that objective Article 244 of the Constitution made the Fifth Schedule applicable to administer scheduled area and tribal area and the Fifth Schedule of. the Constitution, in turn, conferred power on the Governor to notify the laws made by Parliament or by the legislature of the State to apply or not to apply and further Governor has been conferred power to make regulation for the peace and good government of any area within a State. Such wide power has been conferred upon the Governor which is plenary in nature so that Governor G can by regulation prevent exploitation of the tribals from the non-tribals. When such legislations made by Governor in exercise of power has been challenged, Courts have upheld the validity of the same on the ground that it is intended to save the tribals from the other non-tribals in the area who usually take advantage of the simplicity and ignorance of the tribal people. H

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

A But it is difficult to accept the contention of Dr. Rajiv Dhawan, learned senior counsel appearing for the appellant, that the constitutional scheme intended total prohibition of transfer of even the government land in favour of the non-tribal. In P. Rama Reddy's case (supra) this Court after tracing - the history of the Regulation, namely, Andhra Pradesh Scheduled Area Land Transfer Regulation, 1959 (Regulation I of 1959) and the subsequent 'B amendment thereto in the amending Regulation of 1970 came to the conclusion that 1959 Regulation was amended as difficulties were ex- perienced by the Government in implementing the ejectment procedures under the said Regulation, inasmuch as it was not always easy for the

C concerned authority to ascertain the origin of the right under which the non-tribal is claiming possession and whether the land under possession of .- a non-tribal was previously acquired from a tribal or not. According to the learned judges the changes effected by the amended Regulation were :

(i) A rule of presumption was introduced to the effect that unless the contrary is proved, where a non-tribal is in possession D of land in the Scheduled areas, he or his predecessors-in-interest, shall be deemed to have acquired it through transfer from a tribal;

(ii) Transfers of land in Scheduled Areas in favour of non- . tribals shall be wholly prohibited in future; · E (iii) Non-tribals. holding lands in the Scheduled Areas shall be prohibited from transferring their lands in favour of persons other than tribals. Only partitions and devolution by succession of lands held by them shall be permitted; and

F (iv) Where a tribal or non-tribal is unable to sell his land to a tribal on reasonable terms, it shall be open to him to surrender the land to Government who shall thereupon be obliged to acquire it on payment of appropriate compensation."

Thus, the changes brought about by the amended Regulation of 1970 G were essentially intended to facilitate effective enforcement of 1959 Regulation and the object of the amended regulation cannot be held to be total prohibition of alienation of all land including a government land within the scheduled area in favour of a non-tribal. Bearing in mind the aforesaid object of the amended regulation and the Constitutional scheme the word 'person' used.in regulation 3 (l)(a) has to be construed and while

SAMATIIA v. STATE[PATIANAIK,J.) 487

so construing certain principles of statutory interpretation have also to be borne in mind.

WHETHER THE WORD 'PERSON' IN THE REGULATION SHOULD BE INTERPRETED DIFFERENTLY AND IN THE FIRST PART OF REGULATION 3(1)(a) IT SHOULD BE INTERPRETED TO INCLUDE B STATE WHEREAS IN THE OTHER PART II SHOULD BE INTER- PRETED TO MEAN A NATURAL PERSON.

Dr. Rajiv Dhawan, the learned senior counsel appearing for the appellant contended that the word 'person' occurring in first part of Section 3(a) of the Regulation should be construed to mean the 'State' so C that the real object of prohibiting alienation of any land within the scheduled area in favour of a non-tribal person can be achieved. According to the learned counsel it is a permissible rule of construction of a statute to construe the same words used in the same statute differently depending upon the context in which it is used and the object sought to be achieved. D Mr. Sudhir Chander, learned counsel appearing for the respondents on the other hand contended that ordinarily a particular word used in a particular statute should receive the same meaning unless and until it is necessary to ascribe a different meaning to achieve any particular objective for which the statute is intended. But according to the learned counsel it was not the intention of the Constitution makers to prohibit alienation of any land E within the scheduled area in favour of a non tribal person and on the other hand the objective was to put restrictions on the tribal people from transferring their land in favour of non-tribal person so that the tribal people can be saved from being exploited by the sophisticated non-tribals people. This being the objective, there is no necessity to construe the word F 'person' in first part of clause 3(1)(a) of the Regulation to include the State Government also.

It is a cardinal rule of construction of statute that the statute must be read as a whole and construction should be put to all the parts together G and not of anyone part only by itself. Every clause of a statute is required to be construed with reference to the context and other clauses of the Act so that so far as possible the meaning of the enactment of the w~ole statute would be consistent. When legislature uses the same word in different parts of the same Section or statute, there is a presumption that the word is used in the same sense throughout. It was so held by this Court in the following H

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

A cases : Suresh Chand v. Gu/am Chisti, [1990] 1 SCR 186; Mohd. Shafi v. Seventh Additional District & Sessions Judge, Allahabad & Ors., (1977] 2 SCR 464; Raghubans Narain Singh v. The Uttar Pradesh Government through Collector of Bijnor, [1967] 1 SCR 489. But the aforesaid presump- tion can easily be displaced by the context in which tJ.e particular word is used. InFamll v.Alexander, [1976] 2 All England Report 721, it was stated that where the draftsman uses the same word or phrase in similar context, he must be presumed to intend it in each place to bear the same meaning. Venkatarama AY.)lar, J. in the case of Shamrao Vishnu Parulekar v. District Magistrate, 1hana, [1956] SCR 644 discussing the aforesaid rule has said "The rule of construction contended for is well settled but that is only one element in deciding what the true import of enactment is to ascertain which is necessary to have regard to the purpose being the particular provision and its setting in the scheme of the statute."

In Madras Electric Supply Corporation Ltd. (in Liquidation) v. D Board/and (Inspector of Taxes), All England Law Reports, [1955] 1 Page 753, Lord Macdermott pointed out "the presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtues of an orderly and consistent use of language, but it must yield to the requirements of the context and it is perhaps at its weakest when the word in quefition is of the kind that readily draws its precise import, E its range of meaning, from its immediate setting on the nature of the subject with regard to which it is employed. But this Court has accepted the principle that the same word used at different places in the same clause of the same Section may not bear the same meaning at each place having regard to the context of its use. In fact in the case of Maharaj Singh v. State F of U.P. & Ors., [1977] 1 SCR 1072, the word 'vest' used in the same Section of U.P. Jamindari Abolition and Land Reforms Act was interpreted to mean although the vesting in the State was absolute but the vesting in the Sabha was limited to possession and management. This case illustrates that even a word which is used more than once in sub-section of a section may connote and denote divergent things pending upon the context. Therefore, G though on principle the contention of Dr. Rajiv Dhawan, learned senior counsel appearing for the appellant that the word 'person' used in Section 3(1)(a) of the Regulation can be given different meaning in the first part than the meaning to the same word given in the second part of regulation may not be, taken exception, but the question arises whether in the con- H stitutional scheme under which the regulation has been framed and the ·

SAMA1HA v. STATE(PATTANAIK,J.] 489

object and purpose for which the regulation has been framed by the A Governor, does it warrant to give a different meaning to the same word 'person' in different part of the regulation. It may not be out of place to bear in mind the normal rule that general words in a statute must receive a general construction unless there is some thing in the act itself such as subject matter with which the act is dealing or the context in which the words are used to show the intention of the legislature that they must be given a restrictive or wider meaning.

Let us examine some · of the authorities cited at the Bar in this regard. In Appiin v. Race Relations Board, [1974) 2 All ER 73, the word 'person' was defined to include a local authority in the context in which the word has been construed. In the case of Printers (Mysore) Ltd. and Anr. v. Asstt. Commercial Tax Officer & Ors. (supra) relied upon by Dr. Rajiv Dhawan, learned senior counsel, appearing for the appellant, the question for consideration was whether the expression 'goods' occuring in Section 8(3)(b) of the Central Sales Tax Act within the phrase 'for use by him in the manufacture or processing of goods for sale' does take within itself the newspaper and this Court answered the question agreeing with the view taken by the Madras and Kerala High Courts that the goods does include newspaper. This Court relied upon the ratio in T.M. Kanias' case [1968] 2 • SCR 103 and Pushpa Devi's case [1990] 2 SCC 134 and held that it is well settled where the context does not permit or where it would lead to absurd or unintended result, the definition of an expression need not be mechani- cally applied. In Dr. M. Ismail Farnqui & Ors. Etc. Etc. v. Union of India and Ors. Etc. Etc. [1994] 6 SCC 360, on which Dr. Rajiv Dhawan relied very strongly, the majority view held the word 'vest' in Section 3 of the Act has shades taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting being limited in tittle as well as duration. It was further held the meaning of the word 'vest' used in Section 3 has to be determined in the light of the text of the statute and the purpose of its use. Ultimately the Court held while upholding the statue that the vesting of the disputed area in the Central Govt. by virtue of Section 3 of the Act is limited as a statutory receiver, with the duty for its management and administration according to Section 7 requiring maintenance of status quo therein in Sub Section.(2) of Section 7 of the Act. Whereas the vesting of the adjacent area other than the disputed area acquired by the Act in the Central Government by virtue of Section 3 of the Act is absolute with H

490 SUPREMECOURTREPORTS [1997]SUPP.2S.C.R.

A the power of management and administration thereof in accordance with sub-section (1) of Section 7 of the Act till its further vesting in any authority or other body or trustees of any trust in accordance with Section 6 of the Act. The minority view, however, construing Section 3 and 4(1) held that the area includes the whole bundle movable and immovable property under the area specified in the Schedule and all other rights and interests B therein or arising thereof and the whole bundle of property and right vests by reason of Section 4(2) in the Central Government free and discharged from all encumbrances and held the Act to be unconstitutional as the provisions of Section 3, 4 and 8 were held to be invalid. The majority view of the Court expressed through Verma, J. held that a construction which C a language of the statute can bear and promote larger national purpose must be preferred to a strict literal construction tending to promote factionalism and discord. But on examining the provisions. of Section 3(1)(a) of the Regulation after its amendment I am unable to persuade myself to interpret the word 'person' used in Section 3(1)(a) of the regula- D tion differently as in my view neither the context ·in which the word has been used calls for such an interpretation nor the interpretation of giving a literal meaning to the word would lead to any absurdity or unintended result nor even it can be said to be promoting larger national purpose. In P. Rami Reddy's case [1988) Supp. 1 SCR 443, the validity of Section 3(1) of the amended regulation had been assailed and this Court tracing a short .. E history of legislation came to hold that a legislation which in spirit sense and substance aims at restoration of the tribal land which originally belong to the tribals but which passed into the hands of non tribals cannot be characterised as unreasonable. The Court sustained the legislation on the ground that in the absence of protection economically stronger non tribals would in course of time devour of the available lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have. The Court also noticed the fact that under the pre-amended provisions of the regulation (Regulation 1 of 1959) transfer of immovable properties situated in the scheduled areas from a member of a Scheduled Tribe to non tribals without previous sanction of the State Government was prohibited. The amendment in question in the year 1970 was introduced to facilitate effective enforcement of the regula- tions of 1959. In other words, transfer of land in scheduled area in favour of non tribal became prohibited and non tribals holding land in the scheduled area were prohibited from transferring the land in favour of persons other than tribals and further the statutory presumption was

SAMAIBA v. STATE [PATIANAIK, J.] 491

introduced in regulation 3(1)(b) casting burden on the non tribals when he is found to be in possession of a land within the scheduled area to establish that he has not acquired the same from a scheduled trihe. In the aforesaid case the Court did not accept the argument advanced on behalf of the non-tribal that the expression 'land' has been used in its restricted sense in paragraph 5(2)(a) of Schedule V of the Constitution. B In the aforesaid P.R. Reddy's case (supra) the Court also took note of the earlier case in Manchegowda & Ors. v. State of Kamataka & Ors., (1984] 3 sec 301 where constitutional validity of a similar provision in respect of tribal area of Karnataka was under challenge and the Court upheld the constitutionality with an eye to preserve and protect the tribals in the land in the tribal areas. But in none of the aforesaid cases the question of power of the government to transfer the government land had come up for consideration. The Constitutional scheme embodied in Article 15(4) and Article 46 as well as the power conferred upon the Governor of the State under Schedule V of the Constitution are intended to preserve and protect the interest of the tribal in the tribal areas. It cannot be said by any stretch of imagination that all lands within the tribal areas vest in the tribal people. State is the paramount owner of lands and in the garb of preventing the exploitation of tribals from the non-tribals so far as the lands belonging to the tribals are concerned, the State cannot be denuded of its power to exploit resources which vest with the State. Judged from this angle there is no justification for interpreting the word 'person' in the first part of Section 3(1)(a) of the regulation to include S.tate and, th~refore, the prohibitions and restrictions contained in the regulation would not apply to the lands belonging to the State. The word 'person' used in the federal statute imposing tax on persons selling liquor came up for consideration in the case of State of Ohio v. Guy T. Helvering, 85 U.S. Supreme Court Reports 78 Law Edition 1307, it was held that the State engaging in the selling spiritual liquors is not immune from the excise tax imposed by the Federal Government on those engaging iii such business, since in doing it is not performing any governmental function. It was also held that a State is embraced within the meaning of the term 'person' as used in a statute imposing an excise tax on persons selling liquor and the word person shall be construed to mean and include a partnership, association, company or corporation, as well as a natural person. In the case of United States of America v_. Cooper Corporation et. al, US Supreme Court Reports 85 Law Edition 1071 the word 'person' used in Section 7 of the Sherman anti-trust H

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

A Act came up for consideration and it was held that United States is not a person entitled to maintain an action for treble damages withi11 the mean- ing of Section 7 of the Act. It has been held in the aforesaid case that it may be assumed, in the absence of any indication to the contrary, that the term 'person' when used in different sections of a statute, was employed B throughout the statute in the same, and not in different senses. It was also held in the aforesaid case that it is not for the Courts to indulge in the business of policy making in the field of Federal anti-trust legislation, but their function ends with the endeavour to ascertain from the words used, construed in the light of the relevant material, what was in fact the intent of the Congress. In the case of Union of India v. Jubbi and Dunia Etc., C [1968) 1 SCR 447, the question that arose for consideration is whether under the provisions of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 whether tenants under the Union of India as the land owner can acquire proprietary rights. Repelling the arguments advanced by the Union of India that the Act is not intended to be D applicable to the lands to the Union this Court held that the object of the Act was to abolish big landed estate and illeviate the conditions of oc- cupancy tenants by abolishing the proprietary rights of the land-owners in them and vesting such rights in the tenants and that being the object of the legislature it is hardly likely that it would make any discrimination between the State and the Citizens in the matter of the application of the Act. The E ratio of all the aforesaid cases can be summed up thus : though ordinarily a particular word used in a statute should be given the same meaning but it is permissible to construe the said word differently dependi11g upon the object of the Act and the scheme of the Act and the purpose sought to be achieved by Act. F Coming now to the core question of interpretation of the word 'person' in regulation 3(1)(a) under the Amended Act if word 'person' used in Section 3(1)(a) is interpreted to mean to include the State then the expression 'whether or not such a person is a member of a Scheduled Tribe becomes meaningless as the State can never be a member of the Scheduled G Tribe. If a literal meaning to the word 'person' is given in Section 3(1)(a) of the regulation then the prohibitions on restrictions contained therein would apply with full force to inter se transfer of land between the Scheduled Tribe and non-Scheduled Tribe and such an interpretation would subserve the main object of the legislation, namely, to save the tribal - H people from being exploited upon by the non-tribal people. If the constitu-

SAMATIIA v. STATE[PATIANAIK,J.) 493

tional scheme embodied in Articles 15(4) and 244 as well as in the Fifth A Schedule is intended to save the tribal people from, being exploited upon by the non-tribal both in relation to their lands as well as in the matter of taking loans from the moneylenders, there is no obligation to construe the word 'person' to include the State in the first part of Section 3(1)(a) of the regulation. In view of the history of legislation already traced in the earlier B part of this judgment, it is crystal clear that the prohibitions and restrictions never intended for the lands belonging to the government and the provisions both prior to the Constitution and under the Constitution are intended to deal with the tribal people separately so that better attention can be bestowed for their social and economical upliftment. It is with this objective Fifth Schedule of the Constitution conferred power on the Gover- C nor not only to indicate which laws made by the Parliament and the State legislature would apply within the Scheduled area and which laws would not apply, but further to make regulation for administration of the tribal areas for peace and good government in respect of a scheduled area. The matters indicated in Sub-Section (2) of Section 5 of V Schedule of the D Constitution as well as the general power of the Governor to frame regulation contained in Sub-Section (1) of Section 5 of V Schedule, neither expressly nor by necessary implication prohibit transfer of government land in favour of a non-tribal within the scheduled area nor there is any mandate embodied in Article 15(4) or in Article 244 prohibiting the transfer of government land in favour· of a non-Scheduled Tribe person within the E scheduled area. In this perspective I do not find any force in the contention of Dr. Rajiv Dhawan to interpret the word 'person' in the first part of regulation 3(1)(a) to include the State and to interpret person in the second part of said Section 3(1)(a) of the regulation to mean an ordinary in- dividual. In my considered opinion the expression 'person' used in Section p 3(1)(a) of the regulation should have its natural meaning throughout the Section to inean 'natural person' and it does not include the State. In other words, the State 1is not denuded of its power in the matter of exploiting its mineral resources within the scheduled area by a grant or renewal of lease even in favour of non-tribal persons and the restrictions and embargo contained in regulation 3(1)(a) is not applicable to the State in dealing with G the land belonging to the State.

In this view of the matters, it must be held that the provisions of the Regulation have not been contravened by granting mining leases in favour of the Non-Scheduled Tribe person within the Schedule Area. H

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

A Notwithstanding my conclusion that the word 'person' occuring in Section 3(1) of the Regulation does not include 'State' a~d as such the mining leases granted in favour of different. persons do not contravene the provisions of the Regulation but I am inclined to agree with the observa- tions made by Brother Ramaswamy, J. that the lessees should be required to spend a part of the p~ofit for the upliftment of the tribals and for maintaining the ecology in the scheduled areas. Notwithstauding the con- stitutional obligation of the Governor to make special provision for ameliorating the economic status of the tribal people so as to assimilate them into the national main stream, nothing tangible appears to have been achieved in this regard even after 50 years of independence. The tribal people who constitute a substantial majority of the Indian population still spend their time in jungles and other inexcessible areas ;and sufficient legislative and executive measure has not been taken for improving the living conditions of these tribal people. Since the mining activities are being carried out mostly within the scheduled areas it is the duty of the State to see that a part of the profits earned by the lessees shoulcj. be spent for ameliorating the living conditions of the tribals by the lessees themselves. It is in this context brother Ramaswamy, J. has made some observations at pages 141 and 142 of the judgment which have my general concurrence but the said objective has to be achieved by appropriate legislation making it compulsory for the lessees within the tribal area to spend a portion of the E · income arising out of the mining business for tile general upliftment of the living conditions of the tribal people. This should be in addition to the royalty and other cess under different legislations. The State may also consider the question of incorporating some provisions in the leases itself for achieving the aforesaid objectives. F GRANT/RENEWAL OF MINING LEASES AND CONTINUANCE OF THE MINING OPERATIONS WHETHER CONTRAVENES THE PROVISIONS OF THE CONSERVATION ACT? I

Mr. Dhavan, the learned senior counsel for appellant ~ontended that G the Conservation Act has been enacted for conservation of forest and for. matters connected therewith or ancillary or incidental therf1tO. Deforesta- tion having caused ecological imbalance and having lead to ~nvironmental deterioration, with a view to checking further deforestation,' the President promulgated the Forest (Conservation) Ordinance, 1980 onj;25th October,

H 1980. The said Ordinance had made the prior approval f the Central

SAMATIIA v. STATP(PATIANAIK,J.) 495

government necessary for deforestation of reserved forests or for use of forest land for non-forest purposes. The aforesaid Ordinance was replaced by the Forest (Conservation) Act, 1980 (No. 69 of 1980). Under Section 2 of the said Act which being with a non-obstante. clause to the effect "Notwithstanding anything contained in any other law for the time being in force in a State" no State Government except with the prior approval of the Central Government can direct that any forest land or any purposes. Explanation to Section 2 provides the meaning of the expression 'non- forest purpose'. Clause (b) of the said Explanation stipulates that any purpose other than re- afforestation would be a non-forest purpose. This being the position and mining activity being admittedly a non-forest pur- pose, the land in question could not have been permitted to be used for such non-forest purpose without the prior approval of the Central Govern- ment as required by Section 2 of the Conservation Act. The High Court according to the learned counsel, committed serious error in coming to the conclusion that the Conservation Act applies only to the reserved forests. Dr. Dhawan contended that the word 'forest' must be given a wider meaning and should include all forests commonly known as forest and, therefore, even if the area on which mining activities are carried on by the respondent do not form a part of reserved forests in asmuchas no notifica- tion under Section 20 of the Indian Forest Act has been issued but all the same the provisions of the Forest (Conservation) Act would become ap- plicable. The Conservation Act was further amended by Act 69 of 1988 E with Presidential assent on 17.10.1988 and was published in the Gazette of India on 19.12.1988. By way of amendment Clause (3) was inserted to Section (2) which reads thus :

(iii) that any forest land or any portion thereof may be assigned F by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation. not owned, managed or controlled by Government;

Dr. Dhawan, the learned counsel contended that in view of the aforesaid provision no lease could be granted or renewed after 19.12.1988 G in favour of any authority without the prior approval of the Central Govern- . ment. Consequently the impugned leases must be held to be invalid as having contravened the provisions of Section 2 of the Conservation Act. The High Court in the impugned judgment, however, proceeded on the basis that the Conservation Act is applicable only to the reserved forests H

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

A and do::s not apply to any other category of forests. Bearing in mind the objects sought to be achieved by the Conservation Act, we see no justifica- tion to give a restrictive meaning to the expression 'forest land' used in Section 2 of the Conservation Act. On the other hand the expression 'forest land' should be given an extended meaning to cover a track of land covered with trees, shrubs, vegetation and undergrowth under mingled with trees with pastures, be it of natural growth or man made forestation. This Court in the case of Supreme Court monitoring Committee v. Mussoorie Dehradun ·Dev. Aty. & Ors., in Writ Petition (Civil) No. 749 of 1995 has held "that the term 'forest land' has not been defined under the Indian forest Act, 1927 or the 1980 Act and, therefore, have to be understood as including an extensive track of land covered with trees and undergrowth sometimes intermingled with pasture, i.e. it will have to be understood in the broad dictionary sense. So understood any area which the State considers to be forest and is governed under that law will also be subject to Section 2(ii) of the 1980 Act". Viewed in this light, any land which the State of U .P. by D Notification declares to be a forest would be governed under Section (ii) of the 1980 Act. In T.N. Godavaraman Thirnmulkpad v. Union of India & Ors., in Writ Petition (Civil) No. 202 of 1995, the question relating to protection and conservation of the forests throughout the country was considered by this Court, the Court observed : "The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which E ultimately results in ecological imbalance: and therefore, the provisions made therein for the conservation of forest and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof, The word 'forest : must be understood according to its dictionary meaning. This description covers all statutorily recognised p forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term 'forest land', occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Govern- ment record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so under- stood irrespective of the ownership or classification thereof." The Court · also in the aforesaid case gave a general direction to the following effect : "In view of the meaning of the word 'forest' in the Act, it is obvious that prior approval of the Central Government is required for any non-forest

SAMATHA v. STATE(PATIANAIK,J.] 497 activity within the area of any 'forest'. In accordance with Section 2 of the A Act all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind · including veneer or ply-wood mills, and mining of any mineral are non- forest purposes and are, therefore, not permissible without prior approval of the central Government. Accordingly, any such activity is prima f acie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such ac- tivities forthwith." In the case of Divisional Forest Officer a11d Others v. S. Nageswaramma, [1996]:6 SCC 442, this Court has held that renewal of any mining lease could be done only in accordance with the law prevailing on the date of renewal and, therefore, if any renewal of mining lease has been done in violation of Section 2 of the Forest Conservation Act, in asmuchas no prior approval of the Central Government has been obtained, then such renewal is invalid and inoperative. D In view of the afroresaid legal position it is difficult to sustain the conelusion of the High Court in the impugned judgment that the Conser- vation Act applies only to a reserved forest. The said conclusion of the High Court therefore, is set aside. Consequently, it must be held that no mining activities can continue on any forest land unless prior approval of the Central Government is obtained as required under Section 2 of the E Conservation Act. Mr. Sudhir Chandra, learned counsel appearing for the respondents contended that he does not dispute the proposition that the expression 'forest land' in the Conservation Act should be given wider meaning and that mining activities over the forest land cannot continue unless prior approval of the Central Government has been obtained in accordance with Section 2 of the Conservation Act. He vehemently con- tended that the mining activities of the respondents are not over any forest land and the appellants have not produced any material from which this Court can come to the conclusion that it forms a part of the forest even going by the extended meaning of the term 'forest'. As has been stated earlier while narrating the pleadings of the parties, the private respondents have all along asserted that the mining activities in question and their leasehold area over which mining activities are continuing do riot form a part of the forest. The State Government though has filed an affidavit but no assertion has been made as to whether the mining areas with which we are concerned in these appeals formed a part of the forest land and thereby H

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A required the previous approval of the Central Government for being used {_ for mining purpose. On the other hand, the affidavit of the Government indicates that the mining leases in favour of the private respondents have been granted in accordance with the provisions of the Act and the Rules and there has been no contravention of the provisions of the Forest B Conservation Act.

In this state of affairs even though we are of the considered opinion that the forest land in Section 2 of the Conservation Act would receive an extended meaning to include within its sweep an extensive track of land covered with trees, shrubs, vegetation and undergrowth undermingled with trees with pastures, be it of natural growth or man made forestation, yet unless and until it is so determined by the State Government that the mining activities of the respondents are being carried on over forest land it will not be possible to hold that the provisions of Section 2 of the Conservation Act gets attracted. In this view of the matter, the only possible direction which this Court can issue in the facts and circumstances of the present case is that the State of Andhra Pradesh through its officers of the Forest Department should immediately inspect the mining areas of the private respondents and find out whether the lands covered under the mining leases in question form a part of the forest land and if it comes to the conclusion that it is part and parcel of the forest land and no prior approval of the Central Government has been obtained for carrying out the mining activities then immediate direction should be issued to the respondents to stop the mining activities which would be in consonance with the general direction issued by this Court in Godavaraman's case (supra). We are forced to issue such direction in the case in hand as on the materials produced before us by the appellant and in view of the denial in the counter-affidavit filed by the private respondents as well as the affidavit filed on behalf of the State of Andhra Pradesh, it has not been possible to come to the conclusion affirmatively that the land in question · formed a part and parcel of the forest land.

G WHETHER THE LEASES CAN BE SAID TO BE IN VIOLATION OF THE ENVIRONMENT (PROTECTION) ACT 1986.

The aforesaid Act (hereinafter referred to as the 'Environment Act') was enacted by the Parliament as it was thought necessary to protect and improve the environment and to prevent hazards to human beings other

SAMATIIA v. STATE[PATIANAIK,J.] 499

living creatures, plants and property. A decision in this respect had been taken in June 1970 at the United Nations Conference on the Human Environment held at Stockholm in June, 1972 and India had participated in the said conference. The Objects and reasons of the Act indicates that the decline in the environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive con- B centrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems and, therefore, word community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on Human Environment held in Stockholm in June, 1972. though in India there were several legislations for environmen- C tal protection but a need for a general legislation became increasingly evident and, therefore, an enactment was passed. At the outset it may be made clear that in the Writ Petition filed before the High Court no complaint has been made with regard to the violation of the provisions of Environment Protection Act in the matter of granting lease or allowing the mining operation to be carried on. In this Court, however, Dr. Dhawan, · learned senior counsel appearing for the appellant contended that the large scale mining operations within the tribal area pollutes the environ- ment in the tribal area and, therefore, the Central Government is under a statutory obligation to protect the environment and coordinate the ac- tivities of the State Government in the matter of granting mining leases within the tribal area which must be subject to the provisions of the Environment Protection Act. And since no steps have been taken by the State Government in this regard, the leases must be held to be invalid. According to Dr. Rajiv Dhawan, learned senior counsel when several industries have been closed down by this Court on the ground that the p existence of such industries are hazardou3 to human life and thereby violates Article 21 of the Constitution, the mining leases within the tribal areas must also be annulled. As the mining activities pollutes the tribal atmosphere, natural flora and fauna of the area and becomes hazardous to the human life within the tribal area, the said activities must be stopped. G In support of this contention the learned counsel placed reliance on the decisions of this Court in the case of Tarun Bharat Sangh, Alwar v. Union of India & Others., (1992) Supp (2) SCC 448, Subhasll Kumar v. State of . Bihar & Ors., (1991) 1 SCC 598. Mr. Sudhir Chandra appearing for the respondents contended that neither in the High Court nor in the Special Leave Petition in this court basic facts have been averred to indicate how H

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

A the mining lease in question infringe the provisions of the environmental laws. He further contended that the decisions relied upon by the learned counsel for the appellant connot have any application particularly in the absence of any basic facts. Having examined the rival contentions on this score, we find sufficient force in the contention of Mr. Sudhir Chandra. It B is undisputed that no averment has been made in the Writ Petition filed before the High Court alleging infraction of the environmental laws and necessarily, therefore, no argument had been advanced and the High Court had not considered this question at all. Even in the Special Leave petition filed in this Court only infringement of the provisions of the Conservation Act, the provisions of Scheduled Area Land Transfer Regulation and the provisions of Section 11(5) of the Mine and Minerals Regulation and Development Act have been alleged. In paragraph 2 of the Special Leave Petition the questions of law enumerated for consideration also do not contain any question on the violation of environmental laws. In the absence of any allegation and basic datas and consequently lack of opportunity to the respondents to prove the same it would not be safe for thi3 -Court to embark upon an inquiry and come to a conclusion as to whether allowing the mining operations within the tribal area has resulted in the infringe- ment of the Environment protection Act. It would, therefore, be unneces- sary to deal with the decisions cited by Dr. Rajiv Dhawan in support of his contention. The Environment Act consists of four Chapters with 26 Section E therein. Chapter-I contains the definitions, Chapter II contains General power of the Central Government, Chapter III contains the prevention, control and abatement of environmental pollution, and Chapter IV con- tains misc. provisions. Environmental pollution has been defined in Section 2(c) to mean the presence in the environment of any environmental pol- F lutant. "Environmental pollutant" has been defined in Section 2(b) to mean any solid, liquid or gaseous substance present in such concentration as may be, or tend to be injurious to environment. Section 7 prohibits persons carrying on industry from emission or discharge of environmental pol- lutants in excess of such standards, as may be prescribed. "Prescribed" had been defined in Section 2(g) means prescribed by rules made under this G Act. Thus the Rules standard had to be indicated, permissible limit of emission environmental pollutant has to be indicated. Section 8 deals with the embargo on handling of hazardous substances. Section 19 confers power on the persons empowered by the Central Government to enter and inspect any of the premises for the purposes enumerated under Clauses H (a) to (c) of Sub-section (1) of Section 10. Section 15 provides the penalty

SAMATIIA v. STATE[PATIANAIK,J.] 501

for contravention of the provisions of the Act and the rules made there- A under. Section 19 confers power on the Court to take cognizance of any offence on a complaint being made on that behalf. Section 24 is the overriding provisions of the Act notwithstanding any thing inconsistent therewith contained in any enactment. The combined reading of the aforesaid provisions indicate that there must be necessary particulars to find out whether there has been any emission of the environmental pol- lutant in excess of the standard fixed under the rules and it is only then the question of complaining before a court and taking cognizance of the same would arise. If the averments in the Special Leave Petition are examined

- from the aforesaid point it would be seen that there is no iota of material to come to the conclusion that on account of the mining operations conducted by the respondents there has been any emission of environmen- tal pollutant in excess of the standard prescribed under the Rules, nor it is possible to hold that there has been any environmental pollution on account of carrying on the mining operations. In our considered opinion, on the facts alleged it is not possible to embark upon the enquiry as to whether the grant of leases within the tribal area are in violation of the provisions of Environment Protection Act nor the leases can be annulled on that score. Contention of Dr. Dhawan on this score accordingly must be rejected.

Whether the leases in question are contrary ta the provisions of the Mines and E Minerals Regulation and Development Act (far short 'MMRD Act')

Dr. Dhawan, learned counsel appearing for the appellant contended that in view of Section 11(5) of the MMRD Act as amended no mining leases can be governed in favo1.1r of any person wh0 is not a member of Scheduied Tribe. Section 11(5) of the MMRD Act reads, thus : .lm20. F "Notwithstanding anything contained in this Act no prospecting licence or mining lease shall be granted in the Scheduled Areas to any person who is not a member of the Scheduled Tribe, provided that this sub-section shall not apply to an undertaking owned or G controlled by the State ·or Central Government or to a Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964, which is composed of members of Scheduled Tribes".

There cannot be any dispute that on and after coming into force H

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

A Section 11(5) of the MMRD Act no mining leases can be granted or ( renewed within the Scheduled Area to any person who is not a member of Scheduled Tribe within the State of Andhra Pradesh. The only exception being as contained in the proviso, namely, an undertaking owned or con- trolled by the State or Central Government or a society registered or deemed to be registered under Andhra Pradesh Co-operative Societies Act which is composed of members of Scheduled Tribes are excluded from the rigours of Sub-section (5) of Section 11. Therefore, after 1991 if any mining lease is granted in favour of any non-Scheduled Tribe person then the said lease would be void being repugnant to Section 11(5) of the Act but the said provision does not affect the subsisting leases and, therefore, the leases in favour of the respondents cannot be said to be invalid on the ground of infraction of Section 11(5) of the MMRD Act. The provisions is prospec- tive in operation and would be applicable to .any or renewal of a lease subsequent to the enactment of Section 11(5) of the MMRD Act. The leases of the resp'Ondents being prior to the aforesaid enactment these are not hit the said provisions and therefore, Dr. Dhawan's contention on this score cannot be sustained.

My conclusions on different questions, as discussed above, are summed up as under :

E 1. Under the British rule though steps had been taken to make provision for special administration of the tribal areas but there had been no prohibition for transfer of government land in favour of a non-tribal within the scheduled area.

2. Under different laws and regulations operating in different tribal F areas prior to coming into force of the Constitution there was restriction in relation to transfer of lands belonging to the tribals in favour of a non-tribal within the scheduled area but no such restriction was there so far as the government land was concerned.

3. The legislative history and the debates in the Constituent Assembly G culminating in engrafting of Schedule V of the Constitution conferring power on the Governor to make regulation for administration of tribal area were all aimed to prevent the tribals from exploitation of non-tribals and the prohibition/restrictions were all in relation to the transfer of lands belonging to the tribals in favour of non-tribals and it never intended to H have any such prohibition in relation to government land.

SAMAlHA v. STATE[PATIANAIK,J.) 503

4. A combined reading of Article 244 and Schedule V of the Con- A stitution would indicate that there is no constitutional obligation on the Governor to make regulation prohibiting transfer of government land in favour of a non-tribal within the scheduled area.

5. The word 'person' used in Section 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer Regulation as amended in 1970 has to be construed to convey and same meaning throughout the Section and the said expression does not include the State Government.

6. Neither the legislative history nor the object with which special power has been conferred on the Governor under Fifth Schedule to the constitution make it necessary to construe the word 'person' in the first part of Section 3(1)(a) differently from the rest part of the Section so as to include State Government within the said expression.

7. Though under Section 2 of the Forest conservation Act use of any forest land for any non-forest purpose is prohibited without the prior consent of the Central Government and as such mining activities being a non-forest purpose would attract the mischief of said Section 2 of the conservation Act, but in the absence of any materials to conclusively come

. to the conclusion that the land over which the respondents are carrying on the mining activities form a part of the forest land, it would not be proper for this Court to issue any direction prohibiting the mining activities. At E the same time it would be proper to direct the State of Andhra Pradesh through its Forest Department to examine whether the mining activities are being carried on over the forest land and if it comes to the conclusion that the lands do form a part of the forest land then immediate steps should be taken prohibiting continuance of the mining activities until the Central F Government in exercise of power under Section 2 agrees to the same, and we accordingly so direct.

8. The petitioner has not been able to make out any case of violation of the provisions of the Environment Protection Act in the case in hand. G

9. Section 11(5) of the MMRD Act b~ing prospective in nature will have no application to the existing mining leases and, therefore, the leases of the respondents' can't be annulled on that score.

The appeals are disposed of with the aforesaid observations and directions. H

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

A C.A. No. 4603 of 1997. (

PATIANAIK, J. Leave granted.

This appeal by special leave is directed against the judgment of the B Andhra Pradesh High Court dated 27.8.1993 in writ petition No. 3734 of

1993. The present appellant was respondent No. 6 before the High Court SAK.TI, a voluntary social organisation for the upliftment of tribals in East Godavari District filed the writ petition in the Andhra Pradesh High Court praying therein that the mining activities which are carried on by the respondents 6 to 10 in the said writ petition should be immediately stopped as the grant of mining leases in their favour is in contravention of Section 3 of the Andhra Pradesh Scheduled Areas Land, Transfer Regulation, 1959 (hereinafter referred to as the 'Regulation') as well as Section 2 of the Forest (Conservation) Act, 1980 (hereinafter referred to as the 'Conserva- tion Act'). It was averred in the writ petition that the villages where the mining activities are being carried on were notified as protected forest under Section 24 of the Andhra Pradesh Forest Act, 1967 with effect from 8.9.1975 and within the said forest area it is not permissible to continue any mining activity in view of the provisions of the Conservation Act which prohibits user of forest land for non-forest purpose.

E Respondents 1 to 4 before the High Court, who were the public .. officers of the State Government supported the case of the petitioner and took the stand that a joint inspection report had been conducted after surveying the area over which the mining activities are being carried on by the respondents 6 to 10 and the said report reveals that mining leases have been granted over the forest area which is prohibited under the Conserva- F tion Act without prior approval of the Central Government.

Respondent No. 6, the present appellant took the stand that the lease having been granted much prior to the area in question was included as a protected forest, the embargo contained in the provisions of the Conser- G vation Act will not apply and in this connection reliance was placed on the decision of this Court in the case of State of Bihar v. Banshi Ram, [1995] 3 SCC 643. It was also contended that Section 3 of the Regulation has no application to a transfer by the Government in respect of its land in favour of a non-tribal and the word 'person' in Section 3 of the said Regulation will not include the Government. It is not necessary for us to examine the stand taken by other private respondents, namely respondents 7 to 10.

SAMAIBA v. STAIB[PATIANAIK,J.) 505

The High Court by the impugned judgment came to the conclusion that the transfer of any land in scheduled area to a non-tribal is void under Section 3 of the Regulation, and therefore, the lease in favour of respon- dent no. 6 within the scheduled area is void. The High Court came to the conclusion that the word 'person' in Section 3 of the Regulation includes the Government, and therefore, leases granted by the State Government in scheduled area to a non-tribal is void. On the question of applicability of the Conservation Act the High Court also relied upon the decision of the Court in the Banshi Ram's case (supra) and caine to the conclusion that for grant of mining lease in a protected forest area for non-tribal purpose the prior approval of the Central Government is mandatory and since the Government did not obtain the approval of the Central Government, leases are in contravention of Section 2 of the Forest Conservation Act, 1980. Having considered the judgment of this Court in Ambika Quany Works v. State of Gujarat, [1987] 1 SCC 213 and taking into account the fact that respondent no. 6 had completed the mining operation over 42 acres the High Court permitted the said respondent no. 6 to remove the dug up mining in the presence of Joint Collector of the District, Assistant Director of Mines and Geology and the District Surveyor of Forests. Respondent No. 6, the present appellant was prohibited from mining operation in the area with the aforesaid conclusion and thus the appeal by special leave . • Learned counsel for the appellant argued with vehemence that the conclusion of the High Court that the word 'person' in Regulation 3(1)(a) includes the State Government and the transfer of any land within the scheduled area in favour of a non-tribal is null and void is wholly erroneous as the embargo in question is applicable in respect of transfer of land belonging to the Scheduled Castes and Scheduled Tribes and not to land belonging to the State Government. The learned counsel also urged that the restrictions and prohibitions in the Conservation Act will have no application to an existing lease and the lease in favour of the appellant having been granted much prior to the coming into force of the Conserva- tion Act, the High Court committed error in holding that the leases are in violation of the Conservation Act. Both these questions have been con- G sidered in detail by us in Civil Appeal Nos. 4601-02/97 arising out of S.L.P. © Nos. 17080- 81 of 1995 and for the reasons given therein and in view of the conclusion in the said appeals to the effect that the word 'person' used in Section 3(1)(a) of the Regulation does not include the State Govern- ment, and therefore, the prohibitions contained in the said Regulation with H

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

A regard to transfer of land in favour of a non-tribal will not apply to the transfer of land made by the government for the purpose of mining lease, ..• the conclusion of the High Court on this score is erroneous. But so far as the question of applicability of the Conservation Act is concerned, in view of our conclusion on the said question in the appeals arising out of SLPs B referred to earlier (Samatha v. State of A.P. & Ors.) the conclusion of the High Court in the impugned judgment has to be sustained. In view of the inquiry report and the stand taken by the State officials the land over which the appellant was permitted to carry on mining activities is a forest land and before grant of lease in favour of the appellant no approval of the Central Government has been taken. It is no doubt true that Conservation C Act came into force much later than the grant of mining lease in favour of the appellant, but in view of the general directions issued by this Court in T.N. Godavannan Thimmulkpad v. Union of India & Ors. in Writ Petition No. 202 of 1995, the mining activities being a user of the forest land for non-forest purpose has to be stopped and in case it is intended to continue D the mining activities the same can be done only after referring the matter to the appropriate authority of the Central Government and getting the permission of the same. In this view of the matter the conclusion of the High Court in the impugned judgment so far as violation of Conservation Act is concerned is unexceptionable, and therefore, the said conclusion is upheld. Necessarily, therefore, the ultimate direction given by the High .. E Court remains unaffected notwithstanding the conclusion of the High Court on the first question with regard to the applicability of the provisions of the Regulation having been reversed by us. In the premises as aforesaid this appeal is dismissed but in the circumstances there will be no order as to costs.