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TMI Blog1997 (7) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... t have no power to grant mining leases for these lands situated within the enclosures. It is seen from the evidence that the mining leases were granted by the State Government or were transferred and retransferred with the sanction of the State Government from private individuals to juristic persons, the partnership firms or companies. The lands with mining area are situated either in the reserved forest or forest land or within the scheduled area. Therefore, all the mining leases or renewals thereof are in violation of the Fifth Schedule. Equally, mining leases/renewals of mining leases by the, State Government are in violation of Regulation 3(1)(a) read with Section 3(2) of the Regulation and F.C. Act. Therefore, they are all void. The State Government, therefore, is directed to ensure that all concerned industrialists, be they natural or juristic person stop forthwith mining operations within the scheduled area, except where the lease has been granted to the State Undertaking, i.e., A.P.S.M.D. Corporation; they should report compliance of this order to the Registry of this Court within six months of the receipt of this judgment. The lessees of mining leases are directed no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-forest purpose or renewal thereof, without prior approval of the Central Government, is in violation of Section 2 of the FC Act. Accordingly, the Division Bench directed the Government to prohibit mining operations in scheduled area except that the mines stacked on the surface be permitted to be removed after obtaining proper permits. This decision, though earlier in point of time, was not brought to the notice of later Bench mentioned above. The admitted facts are that Borra reserved forest area along with its environs consisting of 14 villages, is the Notified scheduled area in Ananthagiri Mandal of Visakhapatnam District of Andhra Pradesh. The State Government granted mining leases in this area to several non-tribal persons. K. Appa Rao, respondent No. 13, was granted mining lease in that reserved forest area. Most of the area granted to M/s. Perolase India Ltd., respondent No. 7 falls in reserved forest area. M/s. Unirock Minerals Pvt. Ltd., respondent No. 8 had 125.30 acres in the reserved forest area and 45.70 acres in the non-reserved forest area. M/s. Kalyani Minerals, respondent No. 10 had 48.00 acres in the reserved forest area and 32 acres in non-reserved forest area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another lease was granted for 130 acres in reserved forest area of Sivalingam village of Ananthagiri Mandal on September 20, 1977 for a period of 20 years which expires on December 30, 1997. It is stated that the lease had lapsed since it was not being worked out, w.e.f. February 9, 1988 as per G.O.Ms. No. 295 dated June 6, 1989. Associated Mica Exports, respondent No. 16 holds two leases for 50 acres in Dumbriguda village of Ananthagiri Mandal for a period of 20 years granted on March 13, 1986. The lease was executed on September 11, 1986 and it is to expire on September 10, 2006. It is stated that lease is not being worked out at present. They had another lease for 10 acres in Borra group of villages for 20 years granted on October 20, 1983 and the lease deed was executed on November 21, 1983. The lease is to expire on November 20, 2003. It is stated that the mining is not being worked out at present. Respondent No. 17, N. Madan Mohan Reddy had a lease in Mallagumuru village of Ananthagiri Mandal. The extent of the land has not been mentioned but the lease was granted on July 4, 1984. The lease was executed on September 5, 1984 and it is to expire on September 4, 2004. It is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit that by operation of Section 11(5) of the Mine and Mineral (Regulation and Development) Act, 1957 (for short, the 'Mining Act'), as amended by State Act, on and from August 14, 1991, no mining leases in the scheduled area should be granted in favour of non-tribals. It is also admitted that tribals have their patta lands in five enclosures and have their right to cultivate those lands. It is the case of the appellant that after re-survey, the entire area was identified as reserved forest area or at any rate is a forest area in scheduled area. On this factual matrix, the appellant-Society claiming to protect the interests and life of the Scheduled Tribes in the area, filed the writ petitions questioning the power of the Government to grant mining leases in favour of non tribals in the scheduled area, in violation of the Regulation which prohibits transfer of any land in scheduled area to a non-tribal. The Division bench of the High Court has held that the Regulation does not prohibit transfer of the Government land by way of lease to the non-tribals. The word 'person' in Section 3 of the Regulation is applicable to natural persons, namely, tribals and non-tribals. The Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of respondent No. 10, M/s. Kalyani Minerals, it is admitted that Borra caves may be as old as million of years. It is admitted that the "entire area around Borra caves is thickly forested." In the counter-affidavit filed by the District Forest Officer, respondent No. 4, it is admitted that Ananthagiri Mandal is a scheduled area the tribals belong to diverse denominations. It is also one of the important hill regions of the eastern ghats and is known not only for the diversity of its flora and fauna but also for the richness of mineral deposits. It is also rich in forest wealth and the minerals. It is their contention that the forest wealth in this area is the national assets. Agriculture -- a means of livelihood, succor for social justice and base for dignity of person. Agriculture is the main part of the economy and source of livelihood to the rural Indians and a source and succor for social status and a base for dignity of person. Land is a tangible product and sustaining asset to the agriculturists. In Waman Rao v. Union of India a Constitution Bench had observed that India being a predominantly agricultural society, there is a "strong linkage between the land and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate crops in fixed holdings. Plight of the Tribes. Detailed study in this behalf and of their exploitation has been conducted by sociologists and anthropologists, the foremost notable of them being Prof. C. V. F. Haimendrof and Arher. Many others equally have evinced keen interest and investigated into living conditions of the tribes, their culture and customs, etc. which establishes that initially the tribals had held large tracts of lands as masters and had their own rich culture with economic status and cohesiveness as compact groups. The policy adopted by the rulers encouraged non-tribals to immigrate in large number and settled down in tribal areas. Governments compelled tribal Chieftains to permit non-tribals to take hold of revenue administration, which led to the slipping of lands from the hold of the tribes to the non-tribals. In the "Tribes of India -- The Struggle for Survival," Prof. Haimendrof has graphically explained diverse methods by which the tribals were deprived of their lands. Numerous methods adopted to exploit them having become unbearable, they rebelled against their exploitation. Inderelli (Andhra Pradesh) police firing in which hundreds of innocent tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpound interest at yearly or half-yearly rests. Third mode was lease of land against a loan for a fixed number of years (Tirumanam) during which period the Tribes have to cultivate their land, raise the crop and deliver the entire produce to the money-lender; by usufructuary mortgage, the money-lender remains in possession and enjoys the produce from the land for a fixed number of years or till the principal sum is repaid; by advancing cash and find loans (Namu) and lending commodities like food grains mostly for sustenance during the lean months or for seedlings, on the condition that the same would be repaid in full along with flat rate of interest at the time of harvest and in default payment should be with compound interest; in case of further default, the accumulated arrears get merged with the principal, i.e., by way of compound interest. The other types of money-lending extend to petty loans or selling clothes on credit to the Tribes during the lean months on the condition that it would be paid in full at the time of harvest and in default the money-lender would take over the land by threat of physical force. Legislative intervention --Enforcement ineffectiveness. The Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Assistant Agent or to the Agent as may be prescribed. "Montague and Chaonsford Report, 1918 briefly touched the administration of tribal areas and political reform and excluded them from the reformed provincial Governments. Govt. of India Ac, 1919 divided the area into two parts "wholly excluded and partially excluded areas for reform". The former were small and the latter were given joint responsibility of the Governor arid the Governor General in Council. Montague Chaonsford Report of 1918 suggested that the backward area where primitive (tribals) live should be excluded from proposed political reform and administration was entrusted to the Governors of the Provinces. Pursuant to Simon Commission Report, the Government of India Act, 1935 dealt with excluded and partially excluded areas as per Order 1936 issued under Section 91 of Government of India Act, 1935. Simon's Report is worth-extracting here and reads thus: There were two dangers to which subjection to normal laws would have specially exposed these peoples, and both arose out of the fact that they were primitive people, simple, unsophisticated and frequently improvident. There was a risk of their agricultura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduled Areas by virtue of the Scheduled Areas (Part 'A' States) Order, 1950 issued by the President of India. After the advent of the Constitution, Fifth and Sixth Schedules were engrafted as part of the scheme of the Constitution by the founding fathers. Fifth Schedule empowers the President of India who thereunder issued Scheduled Areas (Part 'A' States) Order, 1950 declaring specified areas therein to be Scheduled Areas within the States specified in Part 'A' of the First Schedule to the Constitution of India. Therein also East Godavari, West Godavari and Visakhapatnam Agencies (Vizianagram and Srikakulam Districts are part of it) were declared to be Scheduled Areas in Madras Province. Equally, by Scheduled Areas (Part 'B' States) Order, 1950 which became effective from December 7, 1950, the President exercised the power declaring certain specified areas as Scheduled Areas in Part 'B' States including the State of Hyderabad (Adilabad, Karimnagar, Nizamabad, Warangal, Khammam, Mehboob Nagar Districts). It would, thus, be clear that right from the inception of the Colonial administration, the agency areas were treated distinctly from other areas. Tribals were protected from expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after his revisit), he has stated at pages 59-60 thus: On 7 December 1976, Kumra Boju of Kerimeri came to see me in Kanchanpalli and told me the following story: My father Somu owned fifteen acres of patta land, but for the last thirteen years Rama Gaudu of Asifabad (a man of toddy-tapping caste) has been cultivating this land. When my father died I was a small child, and Rama Gaudu occupied our land. Some time ago I applied to M. Narayan, the Special Dy. Collector, for restoration of my father's land. The Dy. Collector decided the case in my favour and restored the land to me. I Was very happy and ploughed the land in preparation for sowing jawari. But when I was ready to sow Rama Gaudu, supported by some villagers of Keslaguda, stopped my cultivating. Then the Tahsildar, the revenue inspector, and the Patel came to the village and told me that my father's land was mine by right. But at the same time they advised me not to cultivate that land, but to occupy instead of adjoining field which belongs to a Muslim. How could 1 do this? Then Rama Gaudu brought some men and sowed on my land. Moreover Rama Gaudu had reported to the police that 1 had illegally ploughed his lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osefully categorised as Sivaijainabandi, and were evicted. Their lands were assigned to non-tribals. It is ridiculous even to classify the lands held by tribals as Sivaijainabandi just because these people lacked knowledge of the nature of their rights over their lands. Traditionally, the tribals of the area acquired absolute right over the land for cultivation the day they started clearing new patches of forest. Prof. Haimendrof has narrated hundreds of such cases wherein the poor tribals had complained to him as to how they had lost their lands because of wrong and false entries made in the land records by the Patwaris. Even till recently, the records were not maintained properly. This gave scope for the manipulation both by the Patwaris as well as by the petty revenue officials. This manipulation of records took place mainly due to corrupt practices. Dubey's compilation gives first-hand account given by I.A.S. officers on the field representing Andhra Pradesh, Bihar, Gujarat, Maharashtra, represented then by K. Padmanabhaiah, the present Home Secretary, Govt. of India, Orissa, M. P. Rajasthan and West Bengal and they had given graphic first hand account of the magnitude of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter se. In 1971, an amendment was made to exempt hypothecation of lands by tribes to the Co-operative Land Mortgage Banks and other financial institutions approved by the Government, subject to certain conditions. In Assam, the Assam Land and Revenue Regulation Act, 1964 was enacted. In Himachal Pradesh, the H.P. Transfer of Land (Regulation) Act, 1968 was made. In Karnataka, the Bombay Tenancy and Agricultural Lands Act, 1948 was made applicable in Bombay region of the Karnataka Stale. The Mysore Land Revenue (Amendment) Rule, 1960 was suitably amended imposing restriction or alienation of the lands allotted to the Scheduled Tribes and Scheduled Castes without prior permission of the Government. In Kerala, the Kerala Land Reforms Act, 1963 contains similar provision. The Kerala Scheduled Tribes (Restriction of Transfer of Land and Regulation of Alienation of Lands), Act, 1975 was enacted for the same object which has recently been amended by a bill, details whereof are not available. Madhya Pradesh, the M.P.L.P. Code, 1959, under Sections 165(6) and 168(1), prohibits alienation of land and remedy .of restoration thereof is provided. In Manipur, the Manipur Land Reforms and Land Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of May 16, 1946 emphasised the special attention on the tribal areas. From this perspective, we are required to consider the debate in the Constituent Assembly and the draft statements by the two Committees, one for the North-east area now called Sixth Schedule and the rest of the areas covered under Fifth Schedule to the Constitution. The Draft Constitution on Fifth Schedule, presented by Dr. Ambedkar related to Draft Articles 215A and 215B making provision for the administration and control of scheduled areas and Scheduled Tribes. Emphasis was laid therein on the creation of the Tribal Advisory Council to assist the Governor or the Ruler of each State having scheduled area therein, who are required to submit annual report to Government of India regarding the administration of scheduled area in that State, so that the executive power of the Union shall extend to that area to give directions to the State as to the administration of the said area. Draft Part II, Clause 5 relates to law applicable to scheduled area and Clause (a) of Sub-clause (2) of Clause 5 postulated, prohibition or restriction on the transfer of land by or among members of the Scheduled Tribes in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he non-tribals though was initially proposed but was ultimately dropped. After restructuring Fifth Schedule, as presently found, the specific provision in the draft report to allot land to non-tribals was omitted which was accepted by the members of the Constituent Assembly without any demur or discussion. The draft Constitution 1948, Clause (6) as originally proposed reads as under: (i) alienation of allotment of land to non-tribals in Scheduled Areas, it shall not be lawful for a member of Scheduled Tribes to transfer any land in person who is not a member of the Scheduled Tribes; (ii) no land in scheduled area vested in the State within such area shall be allotted to person who is not a member of the Scheduled Tribes except in accordance with the rules made in that behalf by the Governor in consultation with the Tribal Advisory Council for the State." The text ultimately approved by the Constituent Assembly as part of the Constitution reads as under: (1) The Governor may make regulations for the peace and good Government of any area in the State which is for the time being a scheduled area. (2) In particular and without prejudice to the generality of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the administration of the said area. Para 5(2) provides that the Governor may make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area. Without prejudice to the above general power, special power has been conferred under Clause (a) to prohibit or to restrict the transfer of land by or among members of the Scheduled Tribes in such area and under Clause (b) to regulate the allotment of land to members of the Scheduled Tribes in such area; under Clause (c) regulates money-lending to the tribals in the Scheduled Area. In the Constitution, the expression 'Scheduled Areas' has been defined to mean such area as the President may by order declare to be Scheduled Areas. Clause (2) of para 6 provides that the President may at any time by order (a-) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area; (aa) increase the area of any Scheduled Area in a State, after consultation with the Governor of that State; (b) alter, but only by way of rectification of boundaries, any Scheduled Area; (c) on any " alteration of the boundaries of a State or on the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of members of the Scheduled Tribes. Section 3(1) reads as under: 3. Transfer of immovable property by a member of a Scheduled Tribe-- (1)(a) Notwithstanding anything in any enactment, rule or law in force in the Agency tracts any transfer of immovable property situated in the Agency tracts by a person. Whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of person, who is a member of a Scheduled Tribe or a Society, Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes. (b) Until the contrary is proved, any immovable property situated in the Agency tracts and in the possession of a person who is not a member of Scheduled Tribe, shall be presumed to have been acquired by person or his predecessor in possession 'through a transfer, made to him by a member of a Scheduled Tribe. (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 or is willing to purchase the land on the terms offered by such person, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a non-Scheduled Tribe. Sub-section (1)(a) envisages, with a non obstante clause, that notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 and composed solely of members of the Scheduled Tribes. Clause (b) provides rule of evidence by way of presumption that until the contrary is proved, any immovable property situated in the Agency tracts and in the possession of a non-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. The burden would always be on the non- tribal to prove that the land in his possession was not acquired by transfer from a tribal; in other words, the land belongs to tribal and the non-tribal possesses it in contravention of law. Clause (c) of Section 3 provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purpose of initiating proceedings under the Regulation. Section 8 gives power to the State Government to make rules. Section 9 provides for repeal of repugnant provisions of the Madras Act 1 of 1917. Section 10 provides for saving of certain transfers and rights. It is settled law that the transfer of immovable property between a member of the Scheduled Tribe to a non-scheduled Tribe in the Agency tracts is null and void. The non-tribal transferee acquires no right, title and interest in that behalf in furtherance of such sale. This Court in Manchegowda v. State of Karnataka [1984] 3 SCC 301 had declared such sales to be voidable. In Lingappa Pochanna Appelwar v. State of Maharashtra [1985] 1 SCC 479 this Court upheld the constitutionality of similar provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. When the constitutionality of Section 3 of the Regulation was impugned as violative of Articles 19(1)(f) and 14 of the Constitution, this Court, in P. Rami Reddy v. State of Andhra Pradesh [1988] 3 SCC 433 upheld its validity holding that the Regulation aims to restore the lands to the tribals which originally belonged to them but passed into the hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pied by them. Clause (f) prohibits grant of patta rights over any land in notified area to a non-tribal; the agent is empowered to cancel such transfer or revise any title of land granted to a non-tribal in any notified tribal area. Clause (9) prohibits sale in execution of a decree or whenever made, cancellation of sales not finally confirmed before coming into force of the regulation etc. As stated earlier, the Regulation was extended to Telangana region w.e.f. December 1, 1963. Prior thereto, law in Telangana area was in operation prohibiting any transfer of agricultural lands without prior permission of the officers and 1950 Regulation referred to earlier draws rebuttable presumption that all the acquisitions of immovable property situated in Scheduled Areas are acquired through a transfer from tribals. The non-tribals shall be presumed to have acquired title from tribals unless they are able to prove to the contrary that their possession of properties in the Agency tracts was lawfully acquired. Scope of Fifth Schedule -- Interplay with Regulation. The predominant object of Para 5(2) of the Fifth Schedule of the Constitution and the Regulation is to impose total prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The non-tribals who arrived in these areas late in the 19th Century in certain areas and the early 20th Century in certain other areas found the tribals who were in occupation of these lands an easy pray for the schemes of exploitation. The non-tribals were lending money to the tribal communities and taking the land belonging to them as security though nothing was taken in writing from a tribal. The rates of interest charged ranged between 25 to 50 per cent and in certain cases even 100 per cent. The tribals who were traditionally honest and who were simple in their thought and habits fell an easy prey to the schemes of the non-tribals. It was observed by several committees that the non-tribals were able to find ways and means to circumvent the provisions of Regulation 1 of 1959 by entering into benami transactions and other clandestine transactions with unsophisticated tribals. It is absolutely necessary to create conditions for peace and maintain peace and prevent the new non-tribals from settling down in the scheduled area. If the alienations are permitted to the non-tribals there is a danger of large-scale exploitation by the new non-tribals again with the result peace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, is : while regulating allotment of land under this clause, can the Government exclude itself from the power to allot land to a non-tribal when the object of Article 244(1) read with the Fifth Schedule is to control and maintain peace and good governance of the Scheduled area for the social and economic advancement of Scheduled Tribes? Would it be permissible to construe that the land belonging to the Government is outside such control or prohibition or restriction; whether the State Government could allot its land to non-tribals in violation of the Constitution and the law? Answer to these crucial questions bears paramount significance and impact since the object of the founding fathers of the Constitution in empowering the Governor, on the basis of his personal satisfaction, is to regulate by law the administration or control of the Scheduled area for peace and good governance of the Scheduled Tribes in the area. The question is : whether any contra interpretation would sub serve the Constitutional animation or would it frustrate the constitutional objective? The Division Bench of the High Court in Samatha's case relied upon the dictionary meaning of the word 'person' and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, in whom by law the powers and prerogatives of the government of this realm are vested". In "Jurisprudence" by R. W. M. Dias [Fifth Edition], at page 265, it is stated that"...the value of personifying group activities is further reduced by the fact that courts have evolved ways of dealing with such activities without resorting to the device of persona". In Madras Electric Corporation v. Boarland (1955) 1 All ER 753, relied upon by Shri Dhawan, it has been held that the word 'person' in its ordinary and natural sense includes Crown. The same view was reiterated in I. R. Commissioner v. Whiteworth Park Coal Co. Ltd. (1958) 2 All ER 91 at 108. On the concept of "legal personality" and the concept of "person", in "Elementary Principles of Jurisprudence" by Keeton (1949 Edition) relied on by Shri Rajeev Dhawan, in Chapter XIII at page 150, it is stated that in modern law, this personification by law is confined to certain definite limits, although this restriction is based, not upon principle, but upon convenience. In law, however, we are concerned with legal persons, whether they are natural, i.e., human beings capable of sustaining rights and duties, or artificial or juristic, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that it has never been considered necessary to personify the State. The Crown in its political capacity represents the State in England and can sue in the English courts as a person. In Madras Electric Corporation case (1955 (1) All ER 753), the same view was reiterated but when liability was sought to be imposed upon a person, it was held that the general principle of person, does not include the Crown, unless the statute is binding on the Crown, by express provision or by necessary implication. As held in I. R. Commissioner v. Whiteworth Park Coal Co. Ltd. (1958) 2 All ER 91 at 108 in a taxing statute it was held that there was no objection to interpret the word 'person' to include the Crown in any provision other than those which seek to impose a burden. In the American Jurisprudence 2nd Series, Vol. 72, page 407, it is stated that a State, in the ordinary sense of the Federal Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organised under a government sanctioned and limited by a written constitution, and established by the consent of the governed. While the municipal corporation is organised under the authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Virginia, and had the notice served on the defendant. The State auditor, seized the accrued salaries of the Tax papers pursuant to Sections 6331 of the Internal Revenue Code of 1954. The defendant-State refused to honour the levy and instead, delivered payroll warrants to the taxpayers for their, then accrued salaries. Thereafter, the Government brought the action in the District Court for the Southern District of West Virginia to recover from defendant the amount of salaries he had so paid to the taxpayer in disobedience to the Government's levies. The District Court upheld the Government's order. The Court of Appeals, on appeal, affirmed it. On a writ of certiorari, it was held by the Supreme Court of USA that the levy of tax made under Section 6331 was authorised levy and that defendant under Section 6332 of the Internal Revenue Code of 1954 as 'person' was liable to pay the same. In State of Ohio v. Guy T. Helvering (1933) 292 US 360 : 78 Law ed 1307 at 1310 the question was whether "the State", when it was selling liquor through its agency and sources, "was a person" within the meaning of U. S. C. title 26, Section 205 [Section 3244, as amended]? It was held at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the State of West Bengal, when it was carrying on trade, as owner and occupier of the market at Calcutta, without obtaining the licence, was bound by the Calcutta Municipality Act or, by necessary implication, was exempted to obtain licence. A complaint against the State, for its failure to obtain licence was filed by the Municipal Corporation. It was contended that the State is not a person under Section 218 of the said Act. Per Majority, it was held that the Common Law rule of construction that the Crown is not, unless expressly named or clearly intended, bound to be a State, was held to be not acceptable as a rule of construction. It was held that the archaic rule based on prerogative and protection of the Crown has no relevance to a democratic republic. It is inconsistent with the rule of law based on the doctrine of equality and introduces conflicts and anomalies. The normal construction, viz., that an enactment applies to citizens as well as to the State, unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the anomalies and is consistent with the philosophy of equality enshrined in the Constitution. Under the Act there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State -- how dealt with under the Constitution. Part I of the Constitution of India deals with Union and its territories. Article 1 declares that India, that is Bharat, shall be a Union of States. The States and the territories thereof have been specified in the First Schedule to the Constitution. The territory of India shall comprise of -- (a) the territory of States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. Articles 2 to 4 deal with the power of the Parliament to admit into the Union, by law, any State, or establish new Slates on such terms and conditions as it thinks fit. Formation of the new States and alteration of areas, boundaries and names of the existing States are regulated by law made by Parliament. It also gives power to the Parliament to amend the First and the Fourth Schedules and to provide for supplemental, incidental and consequential matters. The First Schedule enumerates the States and the first in the alphabetical order is Andhra Pradesh with territories specified thereunder. Under Part VI of the Constitution titled "The States", Article 152 defines "State". For the interpretation of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property, assets, rights, liabilities and obligations in other cases. Article 298 provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business, and to the acquisition, holding and disposal of property and the making of contracts for any purpose co-extensive with legislative power. The Union of India and each State under Article 300 may sue or be sued, with all rights and liabilities as a constituent power of the State under the Constitution. Article 299 empowers Union of India and the Government of each State to enter into contract, in the exercise of the executive power, to be expressed in the name of the President or the Governor, as the case may be. All assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor, by such persons and in such manner as he may direct or otherwise. However, the President or the Governor shall not be personally liable therefore. Article 300 is of material importance. As stated earlier, the Government of India or a State may sue or be sued, by the name of the State and subject to the provisions of the Constitution and the law enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal arrangements, on the other hand, are hardly ever organised or directly interfered with by Parliament, but have been a matter for the royal prerogative. This principle proprio vigore applies to Cabinet form of functioning under our Constitution. In paragraphs 1155 at page 713, it is further stated that where functions entrusted to a minister or to a department are performed by an official employed in the ministry or department, there is in law no delegation because constitutionally the acts or decisions of the officials are that of the minister. In the exercise of their functions relating to land under any enactment, every minister and government department must have regard to the desirability of conserving the natural beauty and amenity of the countryside. Ministerial Responsibility As stated hereinbefore, the Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic. Article 261(1) of the Constitution provides that full faith and credit shall be given, throughout the territory of India, to public acts, record and judicial decisions of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the individual Minister/ Council of Ministers who are constituents of the Government. The Government acts through its bureaucrats, who shapes its social, economic and administrative policies to further the social stability and progress socially, economically and politically. Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the 'purpose' and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility thereat comes into consideration. The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism persona fact is enjoined to elongate the objects of the Constitution. Scope of the power of the Govt. in disposal of its property in Scheduled area and constitutional duty and lamination of the State. In "In the Framing of the India's Constitution", a study by B. Shiva Rao, (Volume II) in Chapter 20 on the Fifth Schedule of the Constitution on the Tribal Area, the author has surveyed the historical background for integration of Scheduled Tribes into the national mainstream. The historical survey and legislative development do assure us that throughout....A system of modified exclusion of law was applied to the Scheduled areas. The power was with the Governor. He exercises the executive and legislative power to apply, or to refrain from applying any law made by Parliament or State Legislature to the Agency tracts. The object of Government policy is to protect the tribals or their land...by securing to them protection from exploitation. The principal duty of the administration is to protect them from exploitation. Considering the past experience and the exploitation of the tribals' simplicity and truthfulness by the non-tribals, it became imperative by statutory safeguards to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mony with the needs of their families and the community. Welfare State is a rubicon between unbridled individualism and communism. All human rights are derived from the dignity of the person and his inherent worth. Fundamental Rights and Directive Principles of the Constitution have fused in them as fundamental human rights as indivisible and interdependent. The Constitution has charged the State to provide facilities and opportunities among the people and groups of people to remove social and economic inequality and to improve equality of status. Article 39(b) enjoins the State to direct its policy towards securing distribution of the ownership and control of the material resources of the community as best to subserve the common good. The founding fathers with hind sight, engrafted with prognosis, not only inalienable human rights as part of the Constitution but also charged the State as its policy to remove obstacles, disabilities and inequalities for human development and positive actions to provide opportunities and facilities to develop human dignity and equality of status and of opportunity for social and economic democracy. Economic and social equality is a facet of liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure inter alia equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income." It also provides that "an appropriate economic and social reform should be carried out with a view to eradicating all social injustice." Article 9 gives a right declaring that "all the aspects of the right to development set forth in the present declaration are indivisible and interdependent and each of them should be considered in the context of the whole" and Article 10 concludes and reminds the State of its duty "to lake steps to ensure them the full exercise and progressive enhancement of the right to ' development, including the formulation, adoption and implementation of policy, legislative and other measures at the national levels." The directive principles in Part IV of the Constitution are forerunners to the Convention. India being an active participant in the successful declaration of the Convention on Right to Development and a party signatory thereto, it is its duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe of contradiction? How long shall we continue to deny equality in our social acid economic life? We must remove this contradiction at the earliest possible moment or else those who suffered from inequality will blow up the structure of political democracy which this Assembly has laboriously built up. (Vide B. Shiva Rao's, 'The Framing of India' Constitution: Select Documents.' Vol. IV, p. 944.) The core constitutional objective of "social and economic democracy" in other words, just social' order, cannot be established without removing the inequalities in income and making endeavour to eliminate inequalities in status through the rule of law. The mandate for social and economic retransformation requires that the material resources or their ownership and control should be so distributed as to subserve the common good. A new social order, thereby, would emerge, out of the old unequal or hierarchical social order. The legislative or executive measures, therefore, should be necessary for the reconstruction of the unequal social order by corrective and distributive justice through the rule of law. Right to life -- Scope and Content. Article 21 of the Constitution reinforces "r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of life guaranteed by Article 21. Right to health and social justice was held to be fundamental right to workers in Consumer Education and Research Centre v. Union of India, [1995] 3 SCC 42 and Life Insurance Corporation v. Consumer Education and Research Centre, [1995] 5 SCC 482. Right to economic equality is held to be fun-damental right in Dalmia Cement Bharat Ltd. Anr. Etc. v. Union of India . Ors. Etc., JT (1996) 4 SC 555. Right to shelter is held to be a fundamental human right in P.G. Gupta v. State of Gujarat Ors., [1995] Supp. 2 SCC 182, M/s. Shantistar Builders v. Narayan Khimlal Totame Ors,, [1990] 1 SCC 520, Chameli Singh Ors. v. State of U.P. and Anr. [1996] 2 SCC 549 and Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Ors., JT (1996) 10 SC 485. The tribals, therefore, have fundamental right to social and economic empowerment. As a part of right to development to enjoy full freedom, democracy offered to them through the States regulated power of good Government that the lands in Scheduled areas are preserved for social economic empowerment of the tribals. Meaning of Socialist Democratic Republic. It is necessary to consider at this junct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule, therefore, does not affect the power of the State under Article 298 to dispose of its property situated in scheduled area in the manner it deems appropriate. To, buttress his contention, the learned Counsel cited a passage from Walter Bagehot -- The English Constitution at page 283 that the Queen, without consulting the Parliament, can by law disband the Army, engage or dismiss the officers from General Commanding-in-Chief downwards. She could sell all her warships and all novel stores etc. He also cited "Governmental Law" by Hartley and Griffith, page, 289 in that behalf. He further cited Lord Birkecnhead's dictum in Birkdale District Electric Supply Company Ltd. v. Corporation of Southport (1926) AC 355 at 364 wherein it was held that power entrusted to a person or public body by the Legislature was to effectuate public purpose. They cannot divest themselves of those powers and duties. Nor can they do any action incompatible with due exercise of their powers or the discharge of their duties. In Rederiaktiebolaget Amphitrite v. King (1921) 3 KB 500 JT cited by the learned Counsel, the Government had given an undertaking to the owners and permitted the neutral warships t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be done in accordance with rules of business. In particular, the President/Governor is entrusted with the executive power co-extensive with the legislative power enumerated in the Seventh Schedule read with Article 245 of the Constitution. The executive power especially conferred by the Constitution like the pleasure tenure of the power of pardoning a convict are in our view, not apposite to the issue. The power of the executive Government in that behalf has wisely been devised in the Constitution is not subject to any restriction except in accordance with the Constitution and the law made under Article 245 read with the relevant entry in the Seventh Schedule to the Constitution is subject to Fifth Schedule when it is applied to scheduled area. The power of the Government to acquire, hold and dispose of the property and the making of contracts for any purpose conferred by Article 298 of the Constitution equally is co-extensive with the legislative power of the Union/State. However, Article 244(1) itself specifies that provisions of the Fifth Schedule shall apply to the administration and control of the scheduled areas and Scheduled Tribes in any State except the excluded areas sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the word "regulation" in Air India Statutory Corporation etc. v. United Labour Union . Therein, the Contract Labour (Regulation and Abolition) Act, 1970 came for consideration. The question was whether the word "regulation" would include regularisation of the contract labour in the establishment in which contract labour system was abolished, though it was not expressly provided. A Bench of three-Judges had held that the word "regulation", in the absence of restrictive words, must be regarded as plenary in the larger public interest. By necessary implication it includes to do everything which is indispensable for the purpose of carrying out the purposes in view. Accordingly, it was held that though no express provision was made in the Contract Labour Regulation and Abolition Act to regularise the services of the contract labour, working in an establishment after the abolition of contract labour, by necessary implication, the word 'regulation' includes the power to regularise their services as permanent employees in the establishment. Therefore, the word "regulate" the allotment of land to members of Scheduled Tribes in scheduled area in the Fifth Schedule by Clause 5(2)(b) must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting public purposes claim preferential policy decision, option to the State should normally be to elongate and achieve constitutional goal. Secondly, the constitutional priority yields place to private purpose, though it is hedged by executive policy. As a facet of interpretation, the Court too adopts purposive interpretation tool to effectuate the goals set down in the Constitution. Equally, the executive Government in its policy options requires to keep them in the backdrop and regulate disposal of their land-property in accordance with the constitutional policy, executive decision backed by public policy and, at the same time, preserve paramount Tribal interest in the scheduled area. No abstract principle could be laid in that behalf. Each case requires examination in the backdrop of the legislative/ executive action, its effect on the constitutional objectives and the consequential result yields therefrom. The law relating to the power of the President under the Constitution of U.S.A. as has been interpreted by the Supreme Court of U.S.A. or the executive power of the Queen under the scheme in English unwritten Constitution transformed by Convention does not assist us much in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government constitutionally capable to hold, acquire and dispose of the property. Therefore, the word 'person' used in the first part of Section 3(2)(a) is of wider import in the context of ownership of the land transfer of which is prohibited within the scheduled area to a non-tribal. The word 'person' in the second clause was used in the context of natural persons, i.e., the transfer between the tribes and non-tribes. In that context, the word 'person' was used in a restricted sense. So in the context of the artificial or juridical or statutory person, the word 'person' is of wider import. Any other interpretation would defeat the object of Fifth Schedule and the Regulation. Similarly, Section 3(2)(b) regulates the reverse effect. The land in scheduled area is presumed to belong to the tribals treating them as a class. The meaning of the word 'person' does not detract from the meaning of the word 'person' in Section 3(2)(a). Similarly, in Section 3(2)(c) if a non-tribal intends to sell the land to a tribal and if the latter is not willing to purchase the same, the Government may purchase the land from the non-tribal person and distribute it to the tribal (in such manner as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read broadly, in the light of public purpose and social and economic justice which the Regulation seeks to serve. He cited, in support of his contention, the following decisions, viz. The State of Bombay v. R. M. D. Chamarbaugwala ; Ishwar Singh Bindra v. State of U.P. ; Nedurimilli Janardhana Reddy v. Progressive Democratic Students' Union . A word may be read in different contexts in a different way. He cited that the word 'sale' used in the context of freedom of speech and expression was given different meaning in Printers (Mysore) Ltd. v. Asstt. Commercial Tax Officer ; Pushpa Devi v. Milkhi Ram (dead) by his LRs. and Commer. of Income-tax, Bangalore v. J.H. Gotla Yadagiri . The word 'vest' was interpreted with a different meaning in Dr., M, Ismail Faruqui v. Union of India . He therefore, contends that different meaning is required to be given to the word 'person' as used in Section 3(1)(a), 3(1)(b) and 3(1)(c) of the Act. We find force in his contention. M/s. Sudhir Chandra, L. Nageswara Rao, A.V. Rangam and their companion learned advocates, contended that in Section 3 of the Regulation read with the Fifth Schedule, para 5, Sub-clause 2(b), the word "person" would be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bals by non-tribals. The State Government is not expected to exploit the tribals. The Fifth Schedule does not prevent establishment of any factory or an industry or any scheme for development of the tribal area by non-tribals. Exploitation of valuable minerals by the non-tribals is not intended to be prevented by Fifth Schedule to the Constitution. In particular, they laid emphasis on para 5, Clause 2(b) of the Fifth Schedule, which does not prohibit the allotment of the land to the non-tribals. It is contended that the word "regulate" used therein does not necessarily imply prohibition. If such a construction is adopted, it would hinder the progress of the tribal areas. It introduces mutually internal and external contradictions. Harmonious interpretation, therefore, has to be adopted to make the Regulation and the Fifth Schedule work as a consistent whole, regulating prohibition on transfer of land in the tribal areas to the non-tribal natural persons only. Thereby, the word 'person' should be understood in that perspective. The Government and juristic persons are outside the purview of paras 5(2) and 5(3) of the Fifth Schedule and Section 3 of the Regulation. The respective co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als and would be managed by them alone with the facilities and opportunities provided to them by the Union of India through their Annual Budgetary allocation spent through the appropriate State Government as its instrumentalities or local body in a planned development so as to make them lit for self-governance. The words "peace and good Government" used in the Fifth Schedule require widest possible interpretation recognised and applied by this Court in T. M. Kanniyan v. Income-tax Officer, Pondicherry and Queen v. Russell (1882)7 AC 829. By the Constitution (73rd Amendment) Act, 1992 amended Part IX of the Constitution, the principle of self-Government based on democratic principles at Gram Panchayat and level upwards was introduced through Arts. 343 to 343ZG. As an integral scheme thereof, the Andhra Pradesh (Provision of the Panchayats Extension to Scheduled Areas) Act, 1966 came to be made. Section 4(d) of that Act provides that "(N)otwithstanding anything contained under Part IX of the Constitution, every Gram Sabha shall be competent to safeguard and preserve...community resources." Clause (j) of Section 4 provides that planning and management of minor water bodies in the Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons and prevents money-lenders to exploit the tribals. Clause (b) intends to regulate allotment of land not only among tribals but also prohibits allotment of the land belonging to the Government to the non-tribals. In that behalf, wider interpretation of "regulation" would include "prohibition" which should be read into that clause. If so read, it subserves the constitutional objective of regulating the allotment of the land in scheduled areas exclusively to the Scheduled Tribes. Clause 5(2)(b) ensures distributive justice of socio-economic empowerment which yields meaningful results in reality. If purposive construction, in this backdrop is adopted, no internal or external contradiction would emerge. The word "person" would include both natural persons as well as juristic person and constitutional Government. This liberal and wider interpretation would maximise allotment of Government land in scheduled area to the tribals to make socio-economic justice assured in the Preamble and Articles 38, 39 and 46. a reality to the tribals. The restricted interpretation would defeat the objective of the Constitution. The word "person" would be so interpreted as to include State or juristic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word 'regulate' in para 5(2)(b) of the Fifth Schedule in relation to the land in scheduled areas would be applicable to them either as transferor or transferee of land in scheduled area. It, thus, manifests the constitutional and legislative intention that tribals and a Co-operative Society consisting solely of tribal members alone should be in possession and enjoyment of the land in the scheduled area as dealt with in various enactments starting from Gunjam and Vizianagaram Act, 1839 to the present regulation. This interpretation of ours is consistent with the constitutionality of the Regulation as was upheld by this Court in P. Rami Reddy v. State of A.P. [1988] Supp. 1 SCR 443 ; Lingappa Pochanna Appelwar v. State of Maharashtra [1985] 1 SCC 479 and Manchegowda v. State of Karnataka [1984] 3 SCC 301 . There is no internal and external contradiction in this process of harmonious and purposive interpretation of para 5(2)(a) of the Fifth Schedule which regulates transfers between natural persons; para 5(2)(b) encompasses within its ambit, the transfer by the Government of its land to a non -tribal and Clause (c) or the relevant clauses in Sections 3 and 4 of the Regulation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds establishing egalitarian socialist State, the goal. It was, therefore, held that "it. therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other." Pt. Jawaharlal Nehru, while participating in the discussion on the Constitution (First Amendment) Bill, had stated that the Directive Principles are intended to bring about a socioeconomic revolution and to create a new socioeconomic order where there will be social and economic justice for all and for everyone, not only to fortunate few but also the teeming millions of India who would be able to participate in the fruits of freedom and development and exercise the fundamental rights. Dr. Ambedkar, while introducing the Preamble of the Constitution for discussion by the Constituent Assembly, had stated that the purpose of the Preamble is to constitute "a new society in India based on justice, liberty and equality." The Constituent Assembly debates of November. 1948 at pages 230 to 357 do indicate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cultural rights which are necessary for an individual to realise his full potential. In a socialist society, social, political and economic inequalities disappear and none is allowed to possess economic power to the extent that he is in a position to exploit or dominate others. It is only such society which can guarantee human dignity, stability, peace and progress. Mahatma Gandhiji, the father of the nation, in 'Harijans' dated October 9. 1937 had stated that "true economics never militates against the highest ethical standard just as all true ethics to be worth its name must at the same time be also good economics. An economics that inculcates Mammon worship, and enables the strong to amass wealth at the expense of the weak, is a false and dismal science. It spells death. True economics, on the other hand, stands for social justice, it promotes the good of all equally, including the weakest, and is indispensable for decent life." Dr. V.K.R.V. Rao. one of the eminent economists of India, in his" Indian Socialism Retrospect and Prospect" has stated at pages 46-47 that a socialist society has not only to bring about equitable distribution but also to maximise production. It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolence, sacrifice and dedication to the service of the poor and as a natural consequence, its implementation is envisaged through Parliamentary democracy planned economy and the rule of law rather than through a violent' revolution or a dictatorship in any form. Indian socialism, therefore, is different from Marxist or scientific socialism. To achieve the goal set down in the Preamble, the Directive Principles and fundamental rights, the Constitution envisaged planned economy. The Planning Commission has been given the constitutional status for the above purpose. The Third Five Year Plan document extracts the basic features of the socialist pattern of society thus: ...Essentially, this means that the basic criterion for determining lines of advance must not be private profit, but social gain, and that the pattern of development and the structure of socio-economic relations should be so planned that they result not only in appreciable increase in national income and employment but also in greater equality in incomes and wealth....The benefits of economic development must accrue more and more to the relatively less privileged classes of society, and there should be prog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out rendering or having rendered any kind of useful service to their fellowmen and also the sweeping away of forms of educational preference and monopoly which divide men into social classes. It involves, in effect, whatever is needful for the establishment of what socialists call a 'classless society' and in pursuance of this aim its votaries necessarily look for support primarily, though not exclusively, to the working classes, who form the main body of the less privileged under the existing social order. Socialists seek to reduce economic and social inequalities not only in order to remove unearned sources of superior position and influence, but also in order to narrow the gaps between men to such as are compatible with all men being near enough together in ways of living to be in substance equals in their mutual intercourse. In Excel Wearete v. Union of India , the Constitution Bench had held at pages 1030-31 (of SCR): (at p. 36 of AIR) that the concept of socialism or socialist slate has undergone changes from time to time from country to country and from thinker to thinker. But some basic concept still holds the field. The doctrinaire approach to the problem of socialism be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding and rancorous debate on the question whether the law contravened Article 14's concept of the equality before the law. The law seeking the immunity afforded by Article 31C must be a law directing the policy of the State towards securing a Directive Principle and the connection with the Directive Principle must not be some remote or tenuous connection. The object of the nationalisation of the coal mine is to distribute nations resources. It was held at page 1023 (of SCR): (at p. 251 of AIR) that though the word 'socialist' was introduced in the Preamble by late amendment of the Constitution, that socialism has always been the goal is evident from the Directive Principles of the State policy. The amendment was only to emphasise the urgency. Ownership, control and distribution of national productive wealth for the benefit and. use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Article 39(b) but echo the familiar language and philosophy of socialism as expounded generally by all socialist writers. Socialism is, first of all, a protest against the material and cultural poverty inflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respective areas regulate transfer between a tribal and non-tribal with prior permission of the designated officer as a condition precedent to prevent exploitation of the tribals. If a tribal is unwilling to purchase land from a non-tribal, the Stale Government is enjoined to purchase the land from a non-tribal as per the principles set down in the regulations and to distribute the same to a tribal or a co-operative society composed solely of tribals. Whether lease is a transfer Section 105 of the Transfer of Property Act defines lease' as a transfer of right to enjoy immovable property made by the transferor to the transferee for a certain period, express or implied, for consideration of price paid or promised etc. to the transferor by the transferee who accepts the transfer on such terms. Thereby the lease creates a right or an interest in enjoyment of the demised property on terms and conditions contained therein to remain in possession thereof for the duration of the period of lease unless it is determined in accordance with the contract or the statute. It is an encumbrance on the right to be in possession; use and enjoyment of the land by the transferee. Lease is the ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or to set up a bank by the Government or its instrumentalities and for any public purpose etc. is not prohibited for two reasons. namely, (i) there is no transfer of interest in the Government land in favour of a non-tribal; (ii) there is no transfer of its land in law to itself. The contention, therefore, that the Regulation prohibits transfer of Government land for its public purpose is unsustainable. The further contention that even philanthropic persons imbued with social zeal and spirit to ameliorate the social status and economic position of the tribals, would also be prevented to serve them is untenable. What the Regulation prohibits is the transfer of right, title and interest in the immovable property in scheduled area in favour of non-tribals. There is no prohibition on non-tribals philanthropist to organise, through tribals and a Co-operative Society composed solely of tribals, actions to ameliorate socio-economic status of the tribals in the Scheduled Area. The further contention that, the rich mineral wealth being a national asset cannot be kept unexploited which is detrimental to the national development, is devoid of force. Instead of getting the minerals it explo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CW 759 right to education is a fundamental right under Article 46 as held by this Court in Maharashtra State Board of Secondary and H Secondary Education v. K.S. Gandhi and J.P. Unni Krishnan v. State of A.P. ; right to pollution-free atmosphere has been held to be a part of right to live under Article 21 as held by this Court in Subhash v. Slate of Bihar ; right to potable water is a fundamental right as held by this Court in State of Karnataka v. Appa Balu Ingale 1995 Supp (4) SCC 469 : 1993 AIR SCW 337; right to shelter has been held to be a fundamental right in catena of decisions of this Court starting with Olga Telli's case . These are all basic human rights declared under the Universal Declaration of Human Rights and integral part of right to life under Article 21 and other fundamental rights provided in Part III of the Constitution. In the absence of any total prohibition, undoubtedly Article 298 empowers the Governor being the head of the Executive to sanction transfer of its lands. Since the Executive is enjoined to protect social, economic and educational interest of the tribals and when the State leases out the lands in the Scheduled Areas to the non-tribals for explo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein and the law. Mining Lease of Government land is whether outside the Regulation; The question then is: whether grant of mining leases of lands in the Scheduled Areas belonging to the Government is outside the purview of the Regulation? In the light of the aforestated discussion and the conclusion that the word 'person' would include the State Government, the necessary corollary would be that the transfer of the land in Scheduled Areas by way of lease, for mining purpose in favour of non-Tribes stands prohibited by para 5(2)(b) of the Fifth Schedule read with Section 3 of the Regulation. It is on record that the non-tribal individuals have transferred their lease hold interest in the mining leases in favour of some of the respondent-companies. The Government stands prohibited to transfer the mining leases to Corporation aggregate etc. except to its instrumentality. The lease being a transfer of an interest in the land or a right to enjoy such property during subsistence of lease, its transfer stands prohibited. It is well settled position of law, by catena of decisions of this Court, that renewal of lease is in reality a fresh grant of lease, though it is called a rene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Government have no power to grant mining leases for these lands situated within the enclosures. WHETHER LEASES ARE IN VIOLATION OF F.C. ACT OR E. P. ACT In the counter-affidavit filed on behalf of the Government, it is conceded that major part of the lands to which mining leases were granted are situated in reserved forest. It has already been held that transfer of lands situated within scheduled area to non-tribals is void. It is stated that a part of the land covered by some mining leases is outside the reserved forest. The question, therefore, arises: whether these areas are forest? A controversy has been raised by the respondents that unless the lands are declared either as a reserved forest or forest under the Andhra Pradesh Forest Act, 1967. the F.C. Act has no application. Thereby, there is no prohibition to grant mining lease or renewal thereof by the State Government. The need for prior approval of the Central Government is not, therefore, necessary. Prior to the Andhra Pradesh Forest Act. 1967. the Madras Forest Act, 1882 was in force. For declaration of reserved forest for the purpose of the Central Forest Act or a State Act, the set scheme has been devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he "forest cover' means "The sum total of vegetation in a forest; more especially, herbs, shrubs and the litter of leaves, branches". 'Forest reserve' for the different manners 'a tract of forest land set aside by Government order for protection and cultivation". According to Stroud's Judicial Dictionary (fifth ed.). Vol. 2. at page 1014 'forest' means "a place privileged by royal authority or by prescription for the peaceable abiding and nourishment of the beasts or birds of the forest, for resort of the king; a subject may hold a forest by grant from the Crown: by the grant of a forest in a man's own ground, not only the privilege but the land itself passes; within the bounds and within the regard". Black's law Dictionary (6th Edn.) defines 'forest' at page 649 as 'A tract of land covered with trees and one usually of considerable extent". Chambers's Twentieth Century Dictionary defines the expression forest at page 415 as 'a large uncultivated tract of land covered with trees and underwood: woody ground and rude pasture". It would thus be seen that 'forest' bears extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth intermingled with trees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-forest purpose. The prior approval of the Central Government, therefore, is a condition precedent for such permission. The State Governments are enjoined by FC Act, with power coupled with duty, to obtain prior approval of the Central Government. The leases/renewal of leases otherwise are good. The Environment (Protection) Act, 1986 (for short, the 'EP Act') was enacted to protect and improve environment and prevention of hazards to human beings, other living creatures, lands and property. Section 3 of EPA enjoins the Central Government that it should take such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. It would, therefore, be clear that the meaning of the expression 'forest land' in the respective Acts requires extended meaning given so as to preserve forest land from deforestation to maintain ecology and to prevent environmental degradation and hazardous effects on right to life. In Virender Gaur v. State of Haryana this Court in paragraph 7 at pages 580-81: (of SCC): (at p. 309 of AIR SCW) has held that environmental, ecological, air, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad held that the protection to environment is the duty of the State. In Sachidanand Pandey v. State of West Bengal , it was held that it is the fundamental duty of every citizen under Article 51A(g) and Article 48A of the Constitution to protect the forest and environment. The same view was reiterated in State of Bihar v. Murad Ali Khan and M. C. Mehra v. Union of India . On the positive obligation to protect environment, this Court had emphasised it in M.C. Mehra's case (supra) and Indian Council for Enviro-Legal Action v. Union of India . Industries which created environment inimical to the human existence, were directed to be disclosed in Rural Litigation and Entitlement Kendra v. State of U.P. 1989 Supp (1) SCC 504 : AIR 1989 SC 594; Tarun Bharat Sangh, Alwar v. Union of India (1992) 2 SCC 448 : 1992 AIR SCW 102; Vellore Citizens' Welfare Forum v. Union of India and Indian Council for Enviro-Legal Action case (supra). Is particular, in Vellore Citizens case, this Court had pointed out that the sustainable development consists in preservation of the person without compromising the ability of the future generation to meet their needs. Sustainable development is a balancing concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat 1986 (27) 2 Guj LR 1073. It is well settled law that mining operation is a non-forest purpose. In Ambika Quarry Works v. State of Gujarat , a Bench of three-Judges of this Court had held that the renewal of a mining lease, without prior approval of the Central Government was in violation of Section 2 of the FC Act. The same view was reiterated in State of M. P. v. Krishnadas Tikaram 1995 Supp (1) SCC 587 and Tarun Bharat Sangh, Alwar v. Union of India 1993 Supp (3) SCC 115, In Tarun Bharat Sangh's case, it was, however, held that even for mining operations outside the Tiger Reserved Forest declared as protected area, prior permission of the Central Government was necessary. State of Bihar v. Banshi Ram Modi , strongly relied on by the Division bench in Sainatha case and learned Counsel for the respondents was overruled by this Court in Ambika Quarry Work's case. Therefore, the decision no longer operates as a ratio decidenti. The same view was taken by the High Courts in the above judgments. It would, therefore, be mandatory that even renewal of mining leases without prior approval of the Central Government, is void. In M/s. Victorian Granites case 1995 AIR SCW 306, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, to take appropriate action in that behalf and submit report to this Court on the actions so taken. In cases where the similar Acts in other States do not totally prohibit grant of mining leases of the lands in the scheduled area, similar Committee of. Secretaries and State Cabinet Sub-Committees should be constituted and decision taken thereafter. Before granting leases, it would be obligatory for the State Government to obtain concurrence of the Central Government which would, for this purpose constitute a Sub-Committee consisting of the Prime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the State's policy would be consistent with the policy of the nation as a whole. It would also be open to the appropriate legislature, preferably after a thorough debate/ conference of all the Chief Ministers, Ministers holding the concerned Ministry and the Prime Minister and the Central Ministers concerned, to take a policy decision so as to bring about a suitable enactment in the light of the guidelines laid down above so that there would emerge a consistent scheme throughout the country, in respect of the tribal lands under which national wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginals to live in complete isolation and allowed them to follow their own traditional culture, social customs and animistic tribal faiths. There were many dangers in subjecting them to normal laws and they were, therefore, governed by special laws. The Tribal Areas or Agency Areas of the Madras Presidency were governed by Ganjam and Vizagapatnam Act of 1839. Then came the Scheduled Districts Act 14 of 1874 which was followed by the Agency Tracts and Land Transfer Act 1 of 1917. Sections 4(1) and (2) of this Act provided as under: 4 (1). Notwithstanding any rule of law or enactment to the contrary, any transfer of immovable property situated within the Agency Tracts by a member of a hill tribe shall be absolutely null and void unless made in favour of another member of a hill tribe, or with the previous consent in writing of the Agent or of any other prescribed officer. (2) Where a transfer of property is made in contravention of Sub-section (1), the Agent or any other Prescribed Officer may on application by anyone interested, decree ejectment against any person in possession of the property claiming under the transfer and may restore it to the transferor or his heirs. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith these areas as a class. That Act enabled the executive to extend any enactment in force in any part of British India to a "scheduled district" with such modifications as might be considered necessary. In other words, the executive had power to exclude these areas from the normal operation of ordinary law and give them such protection as they might need. The Montagu-Chelmsford Report of 1918 contained a brief reference to these areas: it suggested that the political reforms contemplated for the rest of India could not apply to these backward areas where the people were primitive and "there was no material on which to found political institutions." The typically backward tracts were therefore to be excluded from the jurisdiction of the reformed Provincial Governments and administered personally by the heads of the Provinces. In the Government of India Act of 1919 these tracts were divided into two categories, some areas were considered so backward that they were wholly excluded from the scope of the reforms. The effect of this was that neither the Central nor the Provincial Legislature had power to make laws applicable to these areas and the power of legislation was vested in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le arrangement if centralization of administrative authority in these areas led to a situation in which these areas would be separated from the Provinces of which they were an integral part; and in order to meet this difficulty the Commission suggested that even though there would be a Central responsibility, the backward tracts should not be separated from the Provinces but that the Central Government should use the Governors as degree of backwardness, it could be laid down by rules how far the degree of backwardness, it could be laid down by rules how far the Governor would act in consultation with his Ministers in the discharge of these agency duties. The proposal for centralizing the administration of these areas was however not adopted in the constitutional reforms of 1935. Under the Government of India Act of 1935, these backward areas were classified as excluded areas and partially excluded areas. A small number of excluded areas --the total extent of these was about 18,600 square miles in Assam and 10,000 square miles in the rest of India - in the Provinces of Madras, Bengal, the North-West Frontier Province, the Punjab and Assam, were placed under the personal rule of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d partially excluded areas in the Provinces other than Assam. The Sub-Committee on Assam submitted its report on 28th July, 1947 while the other Sub-Committee on the Excluded and Partially Excluded Areas other than Assam submitted its interim report on 15-8-1947 and final report in September, 1947; The joint meeting of the two Sub-Committees was held in August, 1947. The joint meeting summed up the problems as under: The areas inhabited by the tribes, whether in Assam or elsewhere, are difficult of access, highly malarial and infested also in some cases by other diseases like yaws and venereal disease and lacking in such civilizing facilities as roads, schools, dispensaries and water supply. The tribes, themselves are for the most part extremely simple people who can be and are exploited with ease by plainsfolk, resulting in the passage of land formerly cultivated by them to money-lenders and other erstwhile non-agriculturists. While a good number of superstitious and even harmful practices are prevalent among them, the tribes have their Own customs and way of life with institutions like tribal and village panchayats or councils which are very effective in smoothing village adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribal people should be known as "Scheduled Areas" (the intention being that these areas should figure in a schedule to a notification) and special administrative arrangements made in regard to them. At the same time, having found the treatment of exclusion and partial exclusion to have proved a failure, the sub-committee recommended that the responsibility for the betterment and welfare of these areas should be squarely that of the Provincial Governments and that accordingly the Governors should not have any special reserved or discretionary powers in regard to these areas. But the ultimate responsibility was to be that of the center, both for drawing up plans for the betterment of these areas and for providing the necessary finances. In order to ensure that the requirements of these areas were given full consideration, the sub-committee recommended that the Constitution should provide for the setting up in each Province of a body which ' would keep the Provincial Government constantly in touch with the needs of the aboriginal tracts in particular and with the welfare of the tribes in general. This body was to be known as a Tribes Advisory Council, which it was proposed should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Area from a tribal to a non-tribal was forbidden; and the State Government was also prohibited from allotting State land in a Scheduled Area to non-tribals except in accordance with rules made after consulting the Tribes Advisory Council. Likewise, if advised by the Council, the Governor was obliged to license money-lending, prescribing such conditions as were considered necessary; and the breach of these conditions would be an offence. In order that public attention might be focussed on the development work carried out in these areas, the State Government was required to show separately in its annual financial statement the revenues and expenditure pertaining to these areas. 146. The Sub-Committee in its report with regard to the land in Tribal (Scheduled) Area, provided as under: 25. Land: The importance of protection for the land of the tribals has been emphasised earlier. All tenancy legislation which has been passed hitherto with a view to protecting the aboriginal has tended to prohibit the alienation of the tribal's land to non-tribals. Alienation of any kind, even to other tribals, may have to be prohibited or severely restricted according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Government of India, may report to the Government regarding the administration of the scheduled areas and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. Part II applied to the States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa. Clause 5 specified the laws applicable to scheduled areas in these States. It | provided as under: 5. Law applicable to scheduled areas: (1) The Governor may, if so advised by the Tribes Advisory Council for the State, by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a scheduled area or any part thereof in the State subject to such exceptions and modifications as he may with the approval of the said Council specify in the notification. Provided that where such Act relates to any of the following subjects, that is to say-- (a) marriage; (b) inheritance of property; (c) social customs of the tribes; (d) land, other than lands which are reserved forest under the Indian Forest Act, 1927 or under any other law for the time being in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legislature by this Constitution. Part IV related to the State of East Punjab. Clause 17 provided as under: (2) The Governor may also make regulations so as to prohibit the transfer of any land in a scheduled area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes. (3) Any regulations made under this paragraph when promulgated by the Governor shall have the same force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legislature by this Constitution. The important provision to be noticed is that although in respect of States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa, a total ban was placed on the transfer of land by a member of the Scheduled Tribe to a person who is not a member of the Scheduled Tribe, it was provided, so far as allotment of Government land was concerned, that no land in a Scheduled area could be allotted to or settled with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed scheduled areas or that it shall apply to such areas, subject to specified exceptions and modifications. Although on the whole the Government of Orissa prefer the plan indicated in para 5(1) of Part II of the Fifth Schedule to the Draft Constitution to the pro-vision of Section 92(1) of the Government of India Act, 1935, they apprehend that difficulties, mainly of an administrative nature, might arise out of the inevitable time lag between the passing of an Act by either the Dominion or the State Legislature and the decision of the Governor either that the Act shall not apply to any scheduled area or that in its application to such an area, it shall be subject to certain modifications and exceptions. Since the position will be that as soon as an Act is passed by a Legislature it will apply in all scheduled areas, certain rights and obligations will be created or modified by virtue of the Act. The accrual of such rights and obligations in the interim period might give rise to an awkward situation if it is decided subsequently (and a direction is made to that effect) either that the Act shall not apply to scheduled areas or that it shall apply to such areas subject to certain spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill is passing through the Legislature and a notification will have to be kept ready for issue on the date the Bill on being assented to becomes law. Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to recast the proviso to sub-paragraph (1) of paragraph 5 of Part II of the Fifth Schedule as follows: Provided that where such Act relates to any of the following subjects, that is to say; (a) marriage, inheritance or property or social customs of the Scheduled Tribes; (b) and (c) (Omit); (d) land, other than lands which are reserved forests under the Indian Forest Act, 1927, or under any other law for the time being in force in the area in question, including rights of tenants, allotment of land and reservation of land for any purpose; (e) any matter relating to village administration including the establishment of village parichayats the Governor shall issue such direction when so advised by the Tribes Advisory Council. The Government of Orissa has also made the following comments with regard to sub-paragraph (2) of para 5 of Part II of the Fifth Schedule: With reference to the Governor's power to make regulations under paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added at the end: and any regulations so made may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area. Decision of the Drafting Committee, October, 1948: The Drafting Committee decided to substitute the following for sub-paragraph (2) of paragraph 5 of Part 11 of the Fifth Schedule: (2) The Governor may, after consultation with the Tribes Advisory Council for the State, make regulations for any scheduled area in the State with respect to any matter not provided for by any law for the time being in force in such area, and any regulations so made may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area: Provided that any regulations so made with respect to any matter enumerated in the Union list shall be submitted forthwith to the President and. until assented to by him, shall have no effect. PARAGRAPH 6 K. Santhanam : That in paragraph 6(1) of Part II of the Fifth Schedule, the following be added at the end: except in accordance with rules made in that behalf by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes. PARAGRAPH 17 K. Santhanam : That in paragraph 17(2) of Part IV of the Fifth Schedule, after the words "so as to prohibit" the words "or regulate" be inserted. Note : The remarks on the amendment to paragraph 12 above would also apply to this amendment. This amendment may be accepted. Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to recast sub-paragraph (2) of paragraph 17 of Part IV of the Fifth Schedule as follows: (2) The Governor may also make regulations so as to control or prohibit the transfer of any land in a scheduled area in the State by a member of the Scheduled Tribes to any person who is not a member of the Scheduled Tribes. When the Constituent Assembly took up the Fifth Schedule for consideration on 5th September, 1948, Dr. B. R. Ambedkar moved another Draft Fifth Schedule in place of the original Fifth Schedule. This Schedule was simpler in form and uniformly applied to all the scheduled areas. Para 5 of new Draft is quoted below: 5. Law applicable to scheduled areas--(1) Notwithstanding anything contained in this Constitution the Governor or Ruler, as the case may be, may, by public notification dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originals with respect to the transfer of lands; then I shall submit that there will be no use in saying that the Government is prepared to safeguard the interests of the tribal people. Shri Brajeshwar Prasad suggested as under: The provinces being weak in economic resources are not in a position to shoulder the responsibility. Hence I plead that the center should take command of the tribal areas. The Government of India has no right to exist if it cannot undertake to guarantee means of livelihood and free educational and medical facilities even for such a small number of people.... I want, Sir, that no land in the scheduled areas belonging to an Adibasi should be allowed to be sold or mortgaged even to tribals without the permission of the Deputy Commissioner. Such a provision exists in Santhal Pargana. I am not at all in favour of dispossessing those non-tribals who have got lands or property in the scheduled areas, but no further lands should be given to non-tribals. This protection is needed in the interests of the tribals. It is also in consonance with the demands of the tribal leaders. This concession will generate a feeling of loyalty in the hearts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h areas. (3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor or Ruler may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulations made under this paragraph shall be submitted forthwith to the President and until assented to by him shall have no effect. (5) No regulation shall be made under this paragraph unless the Governor or the Ruler making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. The word "Rajpramukh" was subsequently deleted by 1the Constitution (Seventh Amendment) Act, 1956. The above legislative history indicates that from the very beginning, at least from the 19th Centaury, scheduled areas inhabited by aboriginals and tribals have been administered exclusively under the control of the Central Government through the Governor of the State by providing special statutory measures. It is obvious that from the earliest time till the making of the Constitution, it was all along felt that the transfer of land in the scheduled areas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the State extends to the scheduled areas therein and that the Governor shall report annually to the President regarding the administration of those areas and that the executive power of the Union extends to the giving of direction to the States about the administration of the scheduled areas and further that there shall be a Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes as may be referred to them by the Governor, the Fifth Schedule, in para 5 thereof, proceeds to speak about the applicability of laws to the scheduled areas by saying that the Governor may, by Notification, direct that an Act of Parliament or Legislature of the State shall not apply to the scheduled area or that it shall apply with such exceptions and modifications as may be specified in the Notification. These directions may also be issued with retrospective effect. Under para 5(2) of the Fifth Schedule, the Governor has also been given the power to make Regulations for the "Peace and Good Government" of the scheduled area. Apart from this power which is in very wide and general terms. Regulations could also be made by the Governor to: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T" have reference to the scope and not to the merits of the legislation. It was again explained in Girindra Nath Banerjee v. Birendra Nath Pal , that these words are words of the widest significance and it is not open to a Court to consider whether any legislation made by the Governor would conduce to peace and good Government. The words "PEACE, PROGRESS AND GOOD GOVERNMENT' have also been used in Article 240 of the Constitution which empowers the President to make Regulations for certain Union Territories. This Court had an occasion to-consider the significance of these words in T. M. Kanniyan v. Income-tax Officer, Pondicherry and relying upon the above decisions as also those rendered in Riel v. Queen (1885) 10 AC 675 and Chenard and Co. v. Joachim Arissol (1949) AC 127, it was held that the power of the President to make Regulations under Article 240 was very wide and the President could make Regulations with respect to a Union Territory occupying the same field on which Parliament could also make laws. In exercise of the power conferred by para 5(2) of the Fifth Schedule, the Governor of Andhra Pradesh promulgated Andhra Pradesh Scheduled Areas Land Transfer Regulation, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), the Agent, the Agency Divisional Officer or any other Prescribed Officer suo motu or on the application of anyone interested or on the information of a public servant, decree ejectment of the person in possession of that property claiming under such transfer. The property shall then be restored to the transferor or his heirs. Para 3(2)(b) provides that if a transferor or his heirs are not willing to take back the property or their whereabouts are not known, the property shall be assigned or sold to any other member of the Scheduled Tribe or a Co-operative Society composed solely of the members of the Scheduled Tribe. The Agent or the Agency Divisional Officer or the Prescribed Officer shall have a power to "otherwise" dispose it of as if it was the property at the disposal of the State Government. It may be mentioned here that Para 3(1)(b) contains a rule of presumption that if any immovable property situated in the Agency Tracts is in possession of a person who is not a member of the Scheduled Tribe, it shall be presumed, until the contrary is proved, that the property has been acquired by that person through a transfer made to him by member of the Scheduled Tribe. Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession be delivered to the mortgagee. It will be seen from the above that at least in two circumstances, the property of the member of the Scheduled Tribe or any other person in the Scheduled Area becomes the property of the State Government: (1) If a person is not able to sell his property either because a member of the Scheduled Tribe is not willing to purchase the property or is not willing to purchase the property on the terms at which it proposed to be sold, then the Agent, or the Agency Divisional Officer or any Prescribed Officer can, by order, acquire the property on payment of compensation. The property loses its Original character and becomes the property of the State Government. (2) If on a decree for ejectment being passed against a person in occupation of the property belonging to a Scheduled Tribe under a sale deed which is void, the property is sought to be restored to the transferor or his heirs but they are not willing to take back the property or their whereabouts are not known, it would be open to the Government to assign or transfer the property to any other member of the Scheduled Tribe or otherwise dispose it of as if it was the property, at the dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Tribe. It is contended that almost similar words have been used in Para 3(2)(b) where the property, if it is not taken back by the transferor who is a member of the Scheduled Tribe or his heirs, becomes the property at the disposal of the State Government and the State government has the choice either to assign or sell the property to any member of the Scheduled Tribe or a Co-operative Society of the Scheduled Tribes or "otherwise dispose it of as if it was a property at the disposal of the Government". This interpretation cannot be accepted. The words "or in such other manner and subject to such conditions as may be prescribed" occurring in Para 3(1)(c) and the words "or otherwise dispose it of as if it was a property at the disposal of the State Government" have to be 'read, not in isolation, but in the context of other words used in those provisions. The emphasis throughout in these Regulations has been that the property would be sold or transferred only to a member of the Scheduled Tribe or their Co-operative Societies. The Constitutional scheme which is sought to been forced through Regulations is that the property of the Scheduled Tribe or the immovable property si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement that if the property comes to be vested in the Government or it becomes property at the disposal of the Government, it will be sold, assigned or distributed only to the tribals also is a measure, nay, a strong measure, in that direction to give effect to the philosophy of "Distributive Justice". The Mines and Minerals (Regulation and Development) Act, 1957 has already been amended by insertion of Section 11(5) at the State level which provides that the Government land shall not be allotted for the purpose of mining to non-tribals. A lot of argument Was raised on both sides whether this Amendment was retrospective or prospective. While it is contended on behalf of the respondents that the leases which had already been executed or renewed prior to the Amendment or introduction of Section 11(5), would not be affected the appellants in C.A. arising out of SLP (C) Nos. 17080-81 of 1995 argued that such leases, including renewed leases cannot be operated. We have already held that the present scheme, set but in the Fifth Schedule and Regulations made by the Governor in exercise of the power under Para 5(2) of the Schedule, is to sell, distribute, assign or let out the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11(5) of the Mines and Minerals (Regulation and Development) Act 1957 as amended by Act of 1991 (hereinafter referred to as 'The MMRD Act'). The appellant, who was the petitioner before the High Court advanced the contention that under the Regulation transfer of all lands in the schedule area to a non-tribal is prohibited and the said prohibition equally applied to the government land and as such the mining leases in favour of the private respondents who are non-tribals are void. In elaborating this contention it was contended that the word 'person' in Section 3(1) of the Regulation as amended in 1970 would include the Government. Further contention of the appellant was that in view of Section 2 of the Conservation Act no forest land could be utilised for non forest purpose without the consent of the Central Government and the lease holds favour of the private respondents being the forest land and there being no consent of the Central Government the leases are invalid. Lastly it was contended that in view of Section 11(5) of the MMRD Act the leases in favour of the private respondent who are non tribals must be declared to be void. The Director of Mines and Geology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no lessee who is occupying the reserved forest area, except in one case where to an extent of two thousand metres of the mining lease forms a part of the reserved forest, the validity on account of the non-compliance of the Conservation Act cannot be gone into. The High Court in the impugned judgment has also come to the conclusion that prior approval of the Central Government under Section 2 of the Forest Conservation Act is not required where the land in question has already broken in pursuance of a lease and in support of this conclusion reliance has been placed on the decision of this Court in State of Bihar v. Banshi Ram . The aforesaid view in Banshi Modi's case appears to have not been approved by the Court in the later cases :Ambika Quarry Works v. State Of Gujarat . Further in view of the decisions of this Court in S. Nageswaramma's case, Supreme Court Monitoring Committee's case and Godavarman's case, the High Court committed error in relying upon the ratio of Bakshi Ram Modi's case. The High Court, therefore, observed that the Writ Petitions may approach the Competent Authority in that regard seeking necessary relief and on such petitions being filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserved forest area, notwithstanding the prohibitions contained in different laws as already stated, and the State of Andhra Pradesh has not taken any initiative in stopping the mining activities which has resulted human hazards to the peaceful living of the tribal people and which affects the ecology and environment of the area and, therefore the same should be prohibited by issuance of mandamus. In the grounds taken before this Court in these Special Leave Petitions it has been urged that under the amended Section 3(1) of the Regulations transfer of immovable property situated in the schedule area to non-tribal is prohibited and the word 'person' used in Section 3(1) includes the government and as such the leases contravened Section 3(1) of the Regulation. The further ground taken is that under Section 2 of the Conservation Act without the prior approval of the Central Government the State Government could not have granted mining leases within the forest area as mining obviously is a non-forest purpose. The private respondent No. 12, who is the Managing Director of the Company, filed the counter-affidavit taking the positive stand that the mining leases held by them do not form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 misguiding the tribals who are peacefully 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Governor in exercise of power conferred upon him under Schedule V 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, unsophisticated and frequently improvident. There was also a risk of their agricultural land passing to the more civilised section of the population, and the occupation of the tribals was for the most part agricultural and secondly they were likely to get into the "wiles of the moneylender". 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 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 executive had the power to exclude these areas from the normal operation of ordinary law and give such protection as they might need. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government 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 respect of these tribal areas. 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Volume III, it appears that on account of the Study already made by the Britishers and several reports obtained prior to Independence, the question of administration of tribal areas did engage the attention of the Constitution Assembly for a considerable period. The Constituent Assembly 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 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 center 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 Committee and drafted the Vth Schedule of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph. (See the framing of India's Constitution by B. Shiva Rao Volume III). 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 restrictions, namely, a member of a Scheduled Tribe was not entitled to transfer land within the scheduled area to a member of non-scheduled tribe, and so far as the land vested in the State 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 development 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. 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 'distributive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Fifth Schedule vests with the Governor of the State, the entire governmental power in respect of the schedule areas within the State. The framers of the Constitution found the necessity of vesting such power on 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 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 President. Section 5(2) of Schedule V indicates the amplitude of the Governor's power to make regulation for peace and good government in the Scheduled area in a State. It also stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 member of a Scheduled Tribe in favour of any other member of a Scheduled Tribe benami for the benefit of a person who is not a member of a Scheduled Tribe. (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 servant, or suo 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. (b) If the transferor or his heirs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such land by the State Government, and the Agent, Agency 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-operative Societies Act, 1964 (Act 7 of 1964) composed solely of members 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 immovable property. The said embargo enabled a member of a Scheduled Tribe to transfer the immovable property only in favour of another member of a Scheduled Tribe or in favour of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 , Printers (Mysore) Ltd. and Anr. v. Asstt. Commercial Tax Officer and Ors. ; Commissioner of Income Tax, Bangalore v. J.H. Gotla Vadagiri and Dr. M. Ismail Faruqui and Ors. Etc. Etc. v. Union of India and Ors. Etc. Etc. . The learned Counsel also urged that this Court has accepted the principle that a wide interpretation has to be given to the meaning of immovable property while interpreting the provisions of the regulation in order to fulfil the purpose of the tribal area regulation in the case of P. Rami Reddy and Ors. Etc. v. State of Andhra Pradesh and Anr. Etc. [1988] Supp. 1 SCR 443, Lingappa Pochanna Appehvar v. State of Maharashtra and Anr. Etc. and Manchegowda and Ors. v. State of Karnataka and Ors. , and therefore, the same rules of construction of giving a wider interpretation to the expression 'person' used in Section 3(1)(a) of the regulation should be adhered to. Mr. Sudhir Chandra, learned Counsel appearing for the respondent, on the other hand contended that the regulation in question prior to its amendment does not prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be any exploitation of mineral resources 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 upliftment 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). 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, conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 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 (1)(a) has to be construed and while 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 STATE WHEREAS IN THE OTHER PART II SHOULD BE INTERPRETED TO MEAN A NATURAL PERSON Dr. Rajiv Dhawan, the learned senior counsel appearing for the appellant contended that the word 'person' occurring in first part of Section 3(a) of the Regulation should be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to intend it in each place to bear the same meaning. Venkatarama Ayyar, J. in the case of Shamrao Vishnu Pamlekar v. District Magistrate, Thana [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. Boardland (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 question is of the kind that readily draws its precise import, 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanias' case and Pushpa Devi's case 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 mechanically applied. In Dr. M. Ismail Faruqui and Ors. Etc. Etc. v. Union of India and Ors. Etc. Etc. , 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 title 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regulations 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 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 tribe. 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. In the aforesaid P.R. Reddy's case (supra) the Court also took note of the earlier case in Manchegowda and Ors. v. State of Karnataka and Ors. where constitutional validity of a similar provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any indication to the contrary, that the term 'person' when used in different sections of a statute, was employed 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. , 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 applicable to the lands to the Union this Court held that the object of the Act was to abolish big landed estate and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the land-owners in them and vesting such rights in the tenants and that being the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r peace and good government in respect of a scheduled area. The matters indicated in Sub-section (2) of Section 5 of V Schedule of the Constitution as well as the general power of the Governor to frame regulation contained in Sub-section (1) of Section 5 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 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 ah ordinary individual. In my considered opinion the expression 'person' used in Section 3(1)(a) of the regulation should have its natural meaning throughout the Section to mean 'natural person' and it does not include the State. In other words, the State is not denuded of its power in the matter of exploiting its mineral resources within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L OF MINING LEASES AND CONTINUANCE OF THE MINING OPERATIONS WHETHER CONTRAVENES THE PROVISIONS OF THE CONSERVATION ACT? Mr. Dhavan, the learned senior counsel for appellant contended that the Conservation Act has been enacted for conservation of forest and for matters connected therewith or ancillary or incidental thereto. Deforestation having caused ecological imbalance and having lead to environmental deterioration, with a view to checking further deforestation, the President promulgated the Forest (Conservation) Ordinance, 1980 on 25th October, 1980. The said Ordinance had made the prior approval of the Central 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 'no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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. and 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 Notification declares to be a forest would be governed under Section 2(ii) of the 1980 Act. In T.N. Godavaraman Thirumulkpad v. Union of India and 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the aforesaid legal position it is difficult to sustain the conclusion of the High Court in the impugned judgment that the Conservation 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 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 contended 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf 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. 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 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 concentrations 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the contention of Mr. Sudhir Chandra. It 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 this 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 infringement of the Environment protection Act. It would, therefore, be unnecessary to deal with the decisions cited by Dr. Rajiv Dhawan in support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 to the provisions of the Mines and Minerals Regulation and Development Act (for 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 favour of any person who is not a member of Scheduled Tribe. Section 11(5) of the MMRD Act reads, thus : .lm20. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging to the tribals in favour of non-tribals and it never intended to have any such prohibition in relation to government land. 4. A combined reading of Article 244 and Schedule V of the Constitution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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