1997 Supreme(SC) 948

1997(6) Supreme 530
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
K. Ramaswamy, S. Saghir Ahmed and G.B. Pattanaik, JJ.
Samatha —Appellant
versus
State of Andhra Pradesh & Ors. —Respondents
Civil Appeal Nos. 4601-02 of 1997
With
Civil Appeal No. 4603 of 1997
All Decided on 11-7-1997
Counsel for the Parties :
For the Appearing Parties : Rajiv Dhawan, Sudhir Chandra and P.A. Chaudhary, Sr. Advocates, Dr. Roxna S. Swamy, R.N. Keshwani, D.N. Mishra, P. Niroop, Mrs. Nandini Gore, Mrs. Sona Khan, A.V. Rangam, B. Parthasarathy, T. Anil Kumar, L.N. Rao, S.U.K. Sagar, Vimal Dave, J.P. Pathak, A.C. Mahimkar, (E.C. Agrawala and K.R. Chowdary) Advocates (NP), T.V. Ratnam, L.N. Rao, V. Sridhar Reddy, Advocates

IMPORTANT POINTS
1. The Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959, as amended by Regulation II of 1970 would apply to transfer of Government land to a non-tribal and the Government cannot transfer by way of lease or any other form Government lands situated in scheduled area to a non-tribal except to its instrumentality or a Co-operative Society composed solely of tribes.
2. The word ‘person’ used in Section 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer Regulation as amended in 1970, includes the State Government

Headnote:(i) Constitution of India—Article 244(1), Fifth Schedule—Para 5(2)—Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959, as amended by Regulation II of 1970—Scope of Fifth Schedule—Interplay with Regulation—Scheduled Area—Transfer of immovable property—Limitations—Any transfer inter vivos between tribals or non-tribals or inter-se between non-tribals except testamentary disposition to a tribal—Prohibited—Transfer of Government land—Whether Regulation would apply to transfer of Government land to a non-tribal?—(Yes) (Majority view)—State Government is not exempt from Regulation—Meaning of word ‘person’ in Section 3(i)(a) of Regulation—Whether it includes State Government?—(Yes)—Object of Art. 244(1) read with Fifth Schedule.

       As per K. Ramaswamy, J.

       Held : The predominant object of Para 5(2) of the Fifth Schedule of the Constitution and the Regulation is to impose total prohibition of transfer of immovable property to any person other than a tribals for peace and proven good management of tribal area; to protect possession, right, title and interest of the members of the Scheduled Tribes held in the land at one time by the tribals. The non-tribals, at no point of time, have any legal or valid title to immovable property in Agency tracts unless acquired with prior sanction of the Government and saved by any law made consistent with the Fifth Schedule. With the passage of time, when persons other than tribals gained unlawful title to and possession of the lands in agency tracts, their acquisition and holding of the immovable property, unless proved otherwise, have always been null and void. The Regulation, as its predecessor law, did prohibits transfer by a tribal to any other person and even benami purchaser in the name of a tribal for the benefit of a non-tribal also is null and void. Non-tribal thereon, acquires no right, title and interest in the land situated in situated in scheduled area. Indisputably, any transfer inter vivos between tribals or non-tribals or inter se between non-tribals except testamentary disposition to a tribal, has been totally prohibited. The only exception engrafted is the transfer to Co-operative Societies composed solely of tribals or mortgage of the land to a Co-operative Land Mortgage Bank registered as an instrumentality of the State or any Government approved lending agency to improve the agricultural lands or sale to an agent to the Government etc. A non-tribal person who is unable to find a tribal buyer is not totally prohibited to transfer it. He should offer it to the named or nominated Government agent etc. who would purchase it in the prescribed manner under the Regulation and assign it on to a tribal. (Para 44)

       Paragraph 5(2) of Fifth Schedule enjoins the Governor to make regulations for the peace and good governance in a Schedules area. Without prejudice to the general power, subsequent clauses amplify particular powers. Clause (a) empowers him to prohibit or restrict the transfer of land by or among members of the tribals and non-tribals in such area. Clause (b) regulates the allotment of land only (added to emphasise) to members of the Scheduled Tribes in the area. (Para 47)

        The purpose of the Fifth and Sixth Schedules to the Constitution is to prevent exploitation of truthful, inarticulate and innocent tribals and to empower them socially, educationally, economically and politically to bring them into the mainstream of national life. The founding fathers of the Constitution were conscious of and cognizant to the problem of the exploitation of the tribals. They were anxious to preserve the tribal culture and their holdings. At the same time, they intended to provide and create opportunities and facilities, by affirmative action, in the light of the Directive Principles of Part IV, in particular, Articles 38, 39, 46 and cognate provisions to prevent exploitation of the tribals by ensuring positively that the land is a valuable endowment and a source of economic empowerment, social status and dignity of persons. The Constitution intends that the land always should remain with the tribals. Even the government land should increasingly get allotted to them individually and collectively through registered Cooperative Societies or agricultural/farming Cooperative Societies composed solely of the tribals and would be managed by them alone with the facilities and opportunities provided to them by the Union of India through their Annual Budgetary allocation spent through the appropriate State Government as its instrumentalities of local body in a planned development so as to make them fit for self-governance. The words “peace and good government” used in the Fifth Schedule require widest possible interpretation. (Para 78)

       The object of Fifth and Sixth Schedules to the Constitution, as seen earlier, is not only to prevent acquisition, holding or disposal of the land in Scheduled Areas by the non-tribals from the tribals or alienation of such among non-tribals inter se but also to ensure that the tribals remain in possession and enjoyment of the lands in Scheduled areas for their economic empowerment, social status and dignity of their person. Equally exploitation of mineral resources national wealth undoubtedly, is for the development of the national. The competing rights of tribals and the State are required to be adjusted without defeating rights of either. The Governor is empowered, as a constitutional duty, by legislative and executive action, to prohibit acquiring, holding and disposing of the land by non-tribals in the Scheduled Areas. The Cabinet, while exercising its power under Article 298, should equally be cognizant to the constitutional duty to protect and empower the tribals. Therefore, the Court is required to give effect to the constitutional mandate and legislative policy of total prohibition on the transfer of the land in Scheduled area to non-tribals. (Para 94)

       Further held : We are, therefore, inclined to take the view that the word ‘person’ includes the State Government. The State Government also stands prohibited to transfer by way of lease or any other form known to law, the Government land in scheduled area to non-tribal person, be it natural or juristic person except to its instrumentality or a Co-operative Society composed solely of tribes as is specified in the second part of Section 3(1)(a). Any other interpretation would easily defeat the purpose exclusive power entrusted by the Fifth Schedule to the Governor. If the Cabinet form of Government would transfer the land of the Government to non-tribals peace would get disturbed, good governance in scheduled area would slip into the hands of the non-tribals who would drive out the tribals from scheduled area and create monopoly to the well developed and sophisticated non-tribals; and slowly, and imperceptible, but surely, the land in the scheduled area would pass into the lands of the non-tribals. The letter of law would be an empty content and by play of words deflect the course of justice to the tribals and denude them of the socio-economic empowerment and dignity of their person. (Para 80)

       The word “person” in Section 3(1)(a) would, therefore, be construed to include not merely the natural persons, in the context of tribal and non tribal who deal with the land in Scheduled Areas by transfer inter vivos but all juristic person in the generic sense, including the Corporation aggregate or Corporation sole, State, Corporation, partnership firm, a company, any person with corporate veil or persons of all hues, either as transferor or transferee so that the word ‘regulate in para 5(2)(b) of the Fifth Schedule in relation to the land in Scheduled Areas would be applicable to them either a transferor or transferee of land in a Scheduled Area. It, thus, manifests the constitutional and legislative intention that tribals and a Cooperative Society consisting solely of tribal members alone should be in possession and enjoyment of the land in the schedule area as dealt with in various enactments starting from Gunjam and Vizianagaram Act, 1839 to the present regulation. (Para 81)

       As per S. Saghir Ahmad, J. (Concurring)

       The possibility of the Government disposing it of to a person who is not a member of the Scheduled Tribe is totally ruled out by the Regulations by providing that it shall be sold, assigned or transferred only to tribals or their Co-operative Society. If this applies to properties which become the Government properties, how the properties which are already the Government properties could be excluded from the applicability of these Regulations? The Government has to be bound down to the Constitutional scheme sought to be enforced through Regulations made by the Governor under Para 5(2) of the Fifth Schedule and cannot be permitted to transfer its own properties in favour of non-tribals so as to allow their infiltration into the Scheduled Area. The prohibition contained in Para 3(1)(a) that no person, whether he is a member of the Scheduled Tribe or not, shall transfer his immovable property to a non-tribal must, therefore, in its scope, cover the Government, as well, which, if it possesses land in the Agency Tracts, cannot transfer it either by sale, allotment, lease or otherwise to a non-tribal. To this limited extent, it has to be treated as a “person” within the meaning of Clauses 3(1)(a) of the Regulations. (Para 171)

       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 asolation, 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 be enforced through Regulations is that the property of the Scheduled Tribe or the immovable property situated in Agency Tracts may be protected and be not frittered away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their Co-operative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone. The words “or in any other manner” in Para 3(1)(c) or the words “otherwise dispose it of as if it was a property at the disposal of the State Government” occurring in Para 3(2)(b) have to be read in that context with the result that even if the Government intended to deal with such immovable properties “ in any other manner” it could deal only in manner which would ultimately benefit a member of the Scheduled Tribe or their Co-operative Societies. The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pradesh clearly seek to implement the national policy that the custom, culture, life-style and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal constraint to deal with the property situated in the Agency Tracts only in the manner indicated above, cannot itself act beyond the scope of the Regulations by saying that it is free to dispose of its own properties in any manner it likes. If the Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer. On account of this disqualification, the Government cannot, even if it is not a “person” within the meaning of Para 3(1)(a), transfer, let out or allot its land or other immovable property to a non-tribal. (Para 172)

       As per G.B. Pattanaik, J. (Dissenting)

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

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

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

       3. The legislative history and the debates in the Constituent Assembly culminating in engrafting of Schedule V of the Constitution conferring power on the Governor to make regulation for administration of tribal area were all aimed to prevent the tribals from exploitation of non-tribals and the prohibitions/ restrictions were all in relation of the transfer of lands belonging 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 schedule 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 the 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. (Para 213)

       (ii) Mining Lease—Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959, as amended by Regulation II of 1970—Section 3(1)—Scheduled Area—Mining lease of Government land—Whether outside the purview of Regulation?—Power of Government to grant mining leases for lands situated within enclosures.

       Held : 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 Area by way of lease, for mining purpose of favour of non-tribals stands prohibited by para 5(2)(b) of the Fifth Schedule read with Section 3 of the Regulation. It is on record that the non-tribal individuals have transferred their lease hold interest in the mining leases 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. (Para 97)

       Since, admittedly, a public Corporation acts in public interest and not for private gain, such transfer stands excluded from the prohibition under para 5(2)(b) of the Fifth Schedule and Section 3(1)(a) of the Regulation. Such transfer or lease, therefore, stands upheld. But a transfer of mining leases to non-tribal natural persons or company, corporation aggregate or partnership firm etc. is unconstitutional, void and inoperative. (Para 99)

       It is an admitted position that five enclosures comprise of 426 acres of land occupied by the tribals in those villages. Re-survey started in 1990 jointly by Revenue, Forest and Mining Departments and was completed and the report was made on August 2, 1990. Though 14 villages with five enclosures were notified as Borra reserved forest in GOMs No. 2997 F&A dated October 31, 1966, they stood excluded from reserved forest area. Therefore, the lands in the enclosures being cultivated by the tribals are their patta lands and are entitled to get pattas by the concerned officers. It is conceded on behalf of the respondents that the Government have no power to grant mining leases for these lands situated within the enclosures. (Para 101)

       (iii) Tribals—Scheduled Areas—Mining Leases—Exploitation of mineral resources—Constitutional duties and obligations of those who undertake to exploit natural resources—Constitutional objectives of social, economic and educational empowerment of tribals—20 of net profits should be set apart as permanent fund.

       As per Majority Opinion (K. Ramaswamy & S. Saghir Ahmad, JJ.)

       Held : 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 exploitation of mineral resources, it transmits the corelative above constitutional duties and obligation to those who undertake to exploit the natural resources should also to improve social, economic and educational empowerment of the tribals. As a part of the administration of the project, the licensee or lessee should incur the expenditure for:

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

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

       (c) supply of potable water to the tribals;

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

       (e) providing employment to the tribals according to their qualifications in their establishment/factory;

       (f) establishment of hospitals and camps for providing free medical-aid and treatment to the tribals in the Scheduled Areas;

        (g) maintenance of sanitation;

        (h) construction of houses for tribals in the Scheduled Areas as enclosures; The expenditure for the above projects should be part of his/its Annual Budget of the industry establishment of business avocation/venture.

       In this behalf, at least 20 per cent of the net profits should be set apart as a permanent fund as a part of industrial/business activity for establishment and maintenance of water resources, schools, hospitals, sanitation and transport facilities by laying roads etc. This 20 allocation would not include the expenditure for re-forestation and maintenance of ecology. It is needless to mention that necessary sanction for exemption of said amount form income-tax liability, may be obtained; and the Central should ensure grant of such exemption and see that these activities are undertaken, carried on and maintained systematically and continuously. The above obligations and duties, should be undertaken and discharged by each and every person/industry/licensee/lessee concerned so that the constitutional objectives of social, economic and human resource empowerment of the tribals could be achieved and peace and good government is achieved in Scheduled Areas. (Para 96)

       As per G.B. Pattanaik, J. (Partly concurring)

       Held : Notwithstanding my conclusion that the word ‘person’ occurring in Section 3(1) of the Regulation does not include ‘State’ and as such the mining leases granted in favour of different persons do not contravene the provisions of the Regulation but I am inclined to agree with the observations made by Brother Ramaswamy, J. that the lessees should be required to spend a part of the profit for the upliftment of the tribals and for maintaining the ecology in the scheduled areas. Notwithstanding the constitutional obligation of the Governor to make special provision for ameliorating the economic status of the tribal people so as to assimilate them into the national main stream, nothing tangible appears to have been achieved in this regard even after 50 years of independence. This tribal people who constitute a substantial majority of the Indian population still spend their time in jungles and other inexcessible areas and sufficient legislative and executive measure has not been taken for improving the living conditions of these tribal people. Since the mining activities are being carried out mostly within the scheduled areas it is the duty of the State to see that a part of the profits earned by the lessees should be spent for ameliorating the living conditions of the tribals by the lessees themselves. It is in this context Brother Ramaswamy, J. has made some observations at pages 141 and 142 of the judgment which have my general concurrence but the said objective has to be achieved by appropriate legislation making it compulsory for the lessees within the tribal area to spend a portion of the income arising out of the mining business for the general upliftment of the living conditions of the tribal people. This should be in addition to the royalty and other cess under different legislations. The State may also consider the question of incorporating some provisions in the leases itself for achieving the aforesaid objectives. (Para 206)

       (iv) Tribals—Protection of—Constitutional Scheme. (Paras 33, 34)

       (v) Constitution of India—Art. 244, Fifth Schedule—Para 5(2)(b)—word ‘regulation’ — Meaning —Whether word ‘regulate’ in para 5 clause (2)(b) would include prohibition to transfer Government land ?

       Held : The word “regulate” the allotment of land to members of Schedule Tribes in scheduled area in the Fifth Schedule by Clause 5(2)(b) must be read as a whole to ensure regulation of the land only to and among the members of the Scheduled Tribes in the Scheduled area. In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State’s power of allotment of its land to non-tribals in the Scheduled Areas. When so read there is no incompatibility and inconsistency between the power of the executive Government and the Constitution and conjoint operation would elongate the good governance of the Scheduled Areas. So, while prohibiting transfer of land between natural person, i.e., tribes and non-tribals and preventing non-tribals to purchase from or transfer to another non-tribal, his right, title or interest in the land in the scheduled area, at the same breathe would not be permissible for the Government to transfer their land to a non-tribal except for equally competing public purpose. The answer obviously should be that it is permissible to the Government to transfer its lands to the non-tribals. This negative answers leads to effectuate the constitutional objective to preserve the land in the scheduled area to the tribals, prohibits the Government form alloting their land to the non-tribals; prohibit infiltration of the non-tribals into the scheduled area and prevents exploitation of the tribals by non-tribals in any form. This purposive interpretation would ensure distributive justice among the tribals in this behalf and elongates the constitutional commitment. Any other interpretation would sow the seed beds to disintegrate the tribal autonomy, their tribal culture and frustrate empowerment of them, socially, economically and politically, to live a life of equality, dignity of person and equality of status. (Para 73)

       Further held : The interpretation of the words ‘person’ ‘regulation’ and ‘distribution’ require to be broached broadly to elongate socio-economic justice to the tribals. The word ‘regulates’ in para 5(2)(b) of the Fifth Schedule to the Constitution and the title of Regulation would not only control allotment of land to the Tribes in Scheduled area but also prohibits transfer of private of Government’s land in such areas to the non-tribals. While later clause (a) achieves the object of prohibiting transfers inter vivos by tribals to the non-tribals or non-tribals inter se, the first clauses includes the State Government or being an juristic person integral scheme of para 5(2) of Schedule. The Regulation seeks to further achieve the object of declaring with a presumptive evidence that the land in the Scheduled Areas belongs to the Scheduled Tribes and any transfer made to a non-tribal shall always be deemed to have been made by a tribal unless the transferee establish the contra. It also prohibits transfer of the land in any form known to law and declared such transfer as void except by way of testamentary disposition by a tribal to his kith and kin/tribal or by partition among them. (Para 91)

       (vi) Words and Phrases—Word ‘person’—Meaning of—Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959, as amended by Regulation II of 1970—Section 3(i)(a)—Word ‘person’—Whether includes State Government?

       As per K. Ramaswamy, J.

       Held : The word ‘person’ in the interplay of juristic thought is either natural or artificial. Natural persons are human beings while artificial persons are Corporations. Corporations are either Corporation aggregate or Corporation sole. (Para 49)

       The question whether or not the word ‘person’ used in a statute would include the State has to be determined with reference to the provisions of the Act, the aim and its object and the purpose the Act seeks to subserve. There is no reason to consider the word ‘person’ in a narrow sense. It must be construed in a broader perspectivity, unless the statute, either expressly or by necessary implication, exempts the State from the operation of the Act as against the State and would include “State Government”. (Para 52)

       The maxim “reddendo singula singulis” will apply to the interpretation of the word “person” so that the general meaning of the word “person” in its generic sense with its width would not be cut down by the specific qualification of one species, i.e., natural “person” when it is capable to encompass, in its ambit, natural persons, juristic persons and constitutional mechanism of governance in a democratic set up. It has already been held, and bears no repetition, that the State, by Cabinet form of Government, is a persona ficta, a Corporate sole. (Para 80)

       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 person Corporate sole or persona ficta. Transfer of land by the juristic persons or allotment of land by the State to the non-tribals would stand prohibited, achieving the object to para 5(2) of the Fifth Schedule of the Constitution and Section 3 of the Regulation. If the word ‘person’ is interpreted to mean only natural persons, it tends to defeat the object of the Constitution, the genus and the Regulation. (Para 80)

       The word “person” in Section 3(1)(a) would, therefore, be construed to include not merely the natural persons, in the context of tribal and non tribal who deal with the land in Scheduled Areas by transfer inter vivos but all juristic person in the generic sense, including the Corporation aggregate or Corporation sole, State, Corporation, partnership firm, a company, any person with corporate veil or persons of all hues, either as transferor or transferee so that the word ‘regulate in para 5(2)(b) of the Fifth Schedule in relation to the land in Scheduled Areas would be applicable to them either a transferor or transferee of land in a Scheduled Area. (Para 81)

       As per G.B. Pattanaik, J. (Dissenting)

       General words in a statute must receive a general construction unless there is something in the act itself such as subject matter with which the act is dealing or the context in which the words are used to show the intention of the legislature that they must be given a restrictive or wider meaning. (Para 201)

       On examining the provisions of Section 3(1)(a) of the Regulation after its amendment I am unable to persuade myself to interpret the word ‘person’ used in Section 3(1)(a) of the regulation differently as in my view neither the context in which the word has been used calls for such an interpretation nor the interpretation of giving a literal meaning to the word would lead to any absurdity or unintended result nor even it can be said to be promoting larger national purpose. (Para 202)

       There is no justification for interpreting the word ‘person’ in the first part of Section 3(1)(a) of the regulation to include State and, therefore, the prohibitions and restrictions contained in the regulation would not apply to the lands belonging to the State. (Para 203)

       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 scheduled area by grant or renewal of lease even in favour of non-tribal persons and the restrictions and embargo contained in regulation 3(1)(a) is not applicable to the State in dealing with the land belonging to the State. (Para 204)

       (vii) Interpretation of Statutes—Rule of wide interpretation of Constitution—Words of width issued in Constitution—Require wide interpretation

       Held : It is well established rule of interpretation that the words of width issued in the Constitution requires wide interpretation to effectuate the goals of establishing an egalitarian social order supplying flesh and blood to the glorious contents and context of those words and to enable the citizen to enjoy the rights enshrined in the Constitution from generation to generation. (Para 78)

       It is an established rule of interpretation that to establish Socialist Secular Democratic Republic, the basic structure under the rule of law, pragmatic broad and wide interpretation of the Constitution makes social and economic democracy with liberty, equality of opportunity, equality of status and fraternity a reality to “we, the people of India”, who would include the Scheduled Tribes. All State actions should be to reach the above goal with this march under rule of law. (Para 91)

       (viii) Constitution of India—Arts. 244(1), 245, 298—Fifth Schedule, para 5 of Part B—Power of Governor under Fifth Schedule—Scope of—Executive power of State of dispose of its property—Scope.

       As per K. Ramaswamy, J.

       Held that the Constitution has demarcated legislative, executive and judicial powers and entrusted them to the three wings of the State; in particular the President/Governor of the State is to exercise the executive power in their individual discretion. It is not subject to legislative limitations to be done in accordance with rules of business. In particular, the President/Governor is entrusted with 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 or 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 specified therein. The legislative power in Clause (1) of Article 245 equally is “subject to the provisions of the Constitution” i.e. Fifth Schedule. Clause (1) of para 5 of Part B of the Fifth Schedule applicable to Scheduled areas, adumbrates with a non obstante clause that “Notwithstanding anything in the Constitution, in other words, despite the power, under Article 298, the Governor may, by public notification, direct that any particular Act of Parliament or of the Legislature of a State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State, subject to such exceptions and modifications as he may specify in the notification and any direction given under clause (1) of para 5, may be given so as to have retrospective effect”. The executive power of the State is, therefore, subject to the legislative power under clause 5(1) of the Fifth Schedule. Similarly sub-para (2) thereof empowers the Governor to make regulation for the peace and good government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the Foregoing power, such regulation may regulate the allotment of land to members of the Scheduled Tribes in such area or may prohibit or restrict the transfer of land under clause (a) by or among the members of the Scheduled Tribes in such areas. In other words sub-para 5(2) combines both legislative as well as executive power, clause 5(2)(a) and (c) legislative power and clause (b) combines both legislative as well as executive power. The word ‘regulation’ in para 5(2)(b) is thus of wide import. (Para 72)

       Further held that the executive power of the State to dispose of its property under Article 298 is subject to the provisions in the Fifth Schedule as an integral scheme of the Constitution. The legislative power of the State under Article 245 is also subject to the Fifth Schedule, to regulate the allotment of the Government land in the Scheduled Areas. Obviously, therefore, the State legislature of Andhra Pradesh has now imposed total prohibition under Mines Act to transfer its lands to the non-tribals. Doubtless that under Article 298, the State exercises its power of disposal for public purpose. When two competing public purposes claim preferential policy decision, option to the State should normally be to elongate and achieve constitutional goal. (Para 74)

       As per S. Saghir Ahmad, J.

       The power to make Regulations is undoubtedly legislative in character. The power to issue directions under Para 5(1) of the Fifth Schedule as to the applicability of an Act of Parliament or State Legislature with such exceptions and modifications as the Governor may direct, is also legislative in character. In Chatturam & Ors. v. Commissioner of Income Tax, Bihar, (1947) FCR 116 : (1947) FLJ 92, it was laid down with reference to Section 92(1) of the Government of India Act, 1935 that when the Governor issues a Notification under Section 92(1) by which Federal Laws are applied to Excluded and Partially Excluded areas (Scheduled Areas), he exercised a legislative power. So also when the Governor makes Regulations in exercise of power under Para 5(2) of the Fifth Schedule, which is equivalent to Section 92 of the Government of India Act, 1935 and repeals or amends any Act of Parliament or State Legislature, he exercises legislative power as the principles laid down in Chhaturam’s case (supra) which was followed in Jatindra Nath Gupta v. The Province of Bihar & Ors., (1949) FLJ 225, would be applicable to this situation also. (Para 154)

       The Governor has also been given the legislative power to make Regulations for the “Peace and Good Government” of any area in a State which is a Scheduled Area. The words “Peace and Good Government” are the words of very wide import and give wide discretion to the Governor to make laws for such purpose. (Para 155)

       As per G.B. Pattanaik, J.

       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 stipulates the field over which regulations can be framed by the Governor as contained in Clauses (a) to (c) thereof. The Governor is the sole judge to decide as to what would be the regulation which would be necessary for the peace and good government of the area in question. The ambit of the power of Governor is not restricted to the entries in the VIIth Schedule and the Governor is empowered even to over-ride an act of Parliament or of a State Legislature so far as its applicability to the Scheduled area is concerned. Clauses (a) to (c) of Section 5(2) of Schedule V indicate that the Governor may frame regulation prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes within the Scheduled area, regulate the allotment of lands to the members of the Scheduled Tribes in the area; and regulate the carrying on of business as money-lender by persons who lend money to the members of the Scheduled Tribes in such area. It would thus appear, as the Britishers during the British rule, were really concerned to save the tribals of the area from being exploited by the non-tribals, after coming into force of the Constitution, smiliar power was conferred on the Governor to make regulation for achieving the same object. (Para 192)

       (ix) Constitution of India—Arts. 39(b) & 46—Right to Development—Fundamental right—Scope of—Declaration of ’Right to Development Convention’, adopted by United Nations and ratified by India.

       As per K. Ramaswamy, J.

       Held : India being an active participant in the successful declaration of the Convention on Right to Development and a party signatory thereto, it is its duty to formulate its policies, legislative or executive, accord equal attention to the promotion of, and to protect the right to social, economic, civil and cultural rights of the people, in particular, the poor, the Dalits and Tribes as enjoined in Article 46 read with Articles 38, 39 and all other related Articles read with right to life guaranteed by Article 21 of the Constitution of India. By that constant, endeavour and interaction, right to life would become meaningful so as to realise its full potentiality of “person” as inalienable human right and to raise the standard of living, improve excellence and to live with dignity of person and of equal status with social and economic justice, liberty, equality and fraternity, the trinity are pillars to establish the egalitarian social order in Socialist Secular Democratic Bharat Republic. (Para 66)

       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. (Para 68)

       As per G.B. Pattanaik, J.

       The declaration of ‘Right to Development’ adopted by the United Nations and ratified by India no doubt casts a responsibility on the State to promote and protect social and economic order for development of all people and it has become a States’ responsibility to create conditions favourable to the realisation of the right to development. In other words it is the States’ responsibility to ensure development and eliminate the obstacles to the State development. It is the States’ responsibility to eradicate social injustice. It is the States’ responsibility to see the upliftment of the tribals within the Scheduled areas. There possible cannot be any dispute with the proposition that the State should formulate its policies and laws so that the neglected tribals within the Scheduled areas get equal opportunity with their counterparts in the other sophisticated parts of the State and State should be empowered to make laws for protection of these tribals from being exploited by the non-tribals. State should take all effective steps so as to eradicate inequalities. The aforesaid scheme of the Constitution in our considered opinion does not in any manner suggest that alienation of Government land within the schedule area was intended to be prohibited in favour of a non-tribal person. (Paras 189 & 190)

       (x) Constitution of India—Fifth Schedule—Scheduled area—Government land—Disposal of—Scope of power of Government in—Constitutional duty and limitation of State.

       As per K. Ramaswamy, J. (Majority Opinion)

       Held : 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 protest the tribals or their land,... by securing to them protection from exploitation. The principal duty of the administration is to protect them 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 preserve the land which is their natural endowment and mainstay for their economic empowerment. No laws affecting social matters, occupation of land including tenancy laws allotment of land and setting apart of land for village purposes and village management, including the establishment of village panchayats, would apply, unless they are suitable to the conditions. Thus, the Fifth and Sixth Schedules an integral scheme of the Constitution with direction, philosophy and anxiety is to protect the tribals form exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat. (Para 62)

       As per G.B. Pattanaik, J. (Dissenting)

       The aforesaid scheme of the Constitution in our considered opinion does not in any manner suggest that alienation of Government land within the schedule area was intended to be prohibited in favour of a non-tribal person. (Para 190)

       (xi) Words and Phrases—Constitution of India—Preamble—Word ‘socialism’—Meaning of.

       Held : The word “socialist” used in the Preamble must be read from the goals Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate Articles seek to establish, i.e., to reduce inequalities in income and status and to provide equality of opportunity and facilities. Social justice enjoins the Court to uphold government’s endeavour to remove economic inequalities, to provide decent standard of living to the poor and to protect the interest of the weaker sections of the society so as to assimilate all the sections of the society in a secular integrated socialist Bharat with dignity of person and equality of status to all. (Para 70)

       A socialistic society involves a planned economy which takes note of time and space considerations in the distribution and pricing of output. It would be necessary for both the efficient working of socialist enterprises and the prevention of unplanned and anarchical expansion of private enterprises. The Indian conception of socialism with democracy with human dignity is by creation of opportunities for the development of each individual and not the destruction of the individual. It is not for the merging of the individual in the society. The Indian socialist society wants the development of each individual but requires this development to be such that it leads to the upliftment of the society as a whole. Fundamental duties in Chapter VI-A of the Constitution to bear meaningful content, facilities and opportunity on equal footing in the fundamental condition of a socialist society. The more the talent from backward classes and areas get recognition and support, the more socialist will be the society. (Para 87)

       (xii) Tribal—Constitution of India—Art. 21—Right to life—Scope and content—Tribals have fundamental right to social and economic empowerment.

       Held : The right to live with human dignity with minimum sustenance and shelter and all those rights and aspects of life which would go to make a man’s life complete and worth living, would form part of the right to life. Enjoyment of life and its attainment - social, cultural and intellectual - without which life cannot be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. Right to health and social justice was held to be fundamental right to workers. 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. (Para 69)

       (xiii) Mining Leases—Forest Conservation Act—Section 2—Environment (Protection) Act, 1986—Mining operation—Non forest purpose—Renewal of mining lease without prior approval of Central Government—Violation of Section 2—Mining leases were granted by State Government or were transferred and retransferred with sanction of State Government from private individuals to juristic persons, partnership firms or companies—Lands with mining area situated either in reserved forest or forest land or within Scheduled Area—All mining leases or renewals thereof are in violation of Fifth Schedule of Constitution—Mining leases/renewals by State Government are in violation of Regulation 3(1)(a) r/ws 3(2) of Regulation and Forest Conservation Act—They are void—Chief Secretary of A.P. State to constitute a Committee to consider case of 19th respondent considering averments made for the first time.

       As per Majority

       Held : Shri Sudhir Chandra in his written submission has stated that in respect of the land leased to the 19th respondent, a sum of Rs. 350 crores has been invested for manufacturing of “High Purity Sea Water” magnified by using 100 import high technology. The said product saves annually 70 crores of foreign exchange. It is essential for modernisation of foreign exchange. It is essential for modernisation of major core industry saving large foreign exchange for the country. He has also stated that the mining operations are carried on in plain area only and thereby forest area is not affected. However, since these averments have been made for the first time in the written submissions, after Court reserved its decision, we are deprived of the advantage of having the response of the State Government which in fact, has not taken any active interest in this litigation. We, therefore, feel it necessary that the Chief Secretary of the Andhra Pradesh State should constitute a committee consisting of himself, Secretary (Industry), Secretary (Forest), Secretary (Tribal Welfare/Social Welfare) to have the factual information collected and consider whether it is feasible to permit the industry to carry on mining operations. If the Committee so opines, the matter may be placed before a Cabinet sub-Committee consisting of Minister, Minister for Industries, Minister for Forests and Minister of Tribal Welfare to examine the issue whether licences could be allowed to continue until they expire by efflux of time or whether is expedient to prohibit further mining operations in the light of Section 11(5) of the Mining Act, to take appropriate action in that behalf and submit report to this Court on the actions so taken. (Para 110)

       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. (Para 111)

       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 whether the lease has been granted to the State Undertaking, i.e., A.P.S.M.D. Corporation; they should report compliance of this order to the Registry of this Court within six months of the receipt of this judgment. The lessees of mining leases are directed not to break fresh mines; however, in the meanwhile, they are entitled to remove the minerals already extracted and stocked in the reserved forest area within four months time from today. All concerned authorities are directed to ensure compliance thereof. Even the State Undertaking carrying the mining operations, would be subject to the regulations under the FC Act and EP Act. (Para 114)

       As per G.B. Pattanaik, J.

       Though under Section 2 of the Forest Conservation Act use of any forest land for any non-forest purpose is prohibited without the prior consent of the Central Government and as such mining activities being a non-forest purpose would attract the mischief of said Section 2 of the Conservation Act, but in the absence of any materials to conclusively come to the conclusion that the land over which the respondents are carrying on the mining activities form a part of the forest land, it would not be proper for this Court to issue any direction prohibiting the mining activities. At the same time it would be proper to direct the State of Andhra Pradesh through its Forest Department to examine whether the mining activities are being carried on over the forest land and if it comes to the conclusion that the lands do form a part of the forest land then immediate steps should be taken prohibiting continuance to the mining activities until the Central Government in exercise of power under Section 2 agrees to the same, and we accordingly so direct. The petitioner has not been able to make out any case of violation of the provisions of the Environment Protection Act in the case in hand. (Para 213)

       (xiv) Forest Conservation Act—Environment (Protection) Act, 1986—Expression ‘forest land’ in respective Acts requires extended meaning—Whether Mining leases are in violation of Forest Conservation Act or Environment (Protection) Act ? State Undertaking carrying mining operations would be subject to regulations under the Acts.

       Held that ‘forest’ bears extended meaning of a tract of land covered will trees, shrubs, vegetation and undergrowth inter-mingled with trees with pastures, be it of natural growth or man-made forestation. The FC Act, as amended by 1988 Act was enacted to check deforestation and conservation of forest. Section 2, therefore, prohibits de-reservation of the forest or use of any forest land for an non-forest purpose or assignment by way of lease or otherwise of any portion of land to any private person other than Government controlled or owned, organised or managed by the State Government agency; it prohibits clearance of trees or natural growth in the forest land or any portion thereof to use it for reforestation, except for preservation. Breaking up or clearance of forest land or a portion thereof is amplified to be of non-forest purpose. The object of the F.C. Act is to prevent any further deforestation which causes ecological imbalance and leads to environmental degradation. It is, therefore, necessary for the State Government to obtain prior permission of the Central Government for (1) dereservation of forest; and (2) the use of forest land for non-forest purpose. The prior approval of the Central Government, therefore, is a condition precedent for such permission. The State Governments are enjoined by FC Act, with power coupled with duty, to obtain prior approval of the Central Government. The leases/renewal of leases otherwise are good. (Para 104)

       The Environment (Protection) Act, 1986 (for short, the ‘EP Act)’ was enacted to protect and improve environment and prevention of hazards to human beings, other living creatures, lands and property. Section 3 of EP Act enjoins the Central Government that it should take such measures as it deems necessary or expedient for the purpose of protecting and 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. (Para 105)

       Mining operations, though detrimental to forest growth, are part of layout of the industry; provision should be made for investment or infrastructural planing to reforest the area; and to protect environment and regenerate forest. The Ministry of Environment and Forests and all Secretaries of all the State Governments holding charge of Forest Departments, have a duty to prevent mining operations affecting the forest, it is significant to note that, whether mining operations are carried on within the reserved forest or other forest area. It is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human consistence nor a source to destroy flora and founa and biodiversity. The provisions of the FC Act get attracted to ensure preservation of forest. (Para 107)

       (xv) Mines and Minerals (Regulation and Development) Act, 1957—Section 11(5)—Government land shall not be allotted for purpose of mining to non-tribals—Whether this amendment was retrospective or prospective?

       As per S. Saghir Ahmad, J. (Majority opinion)

       Section 11(5) introduced in the Act only seeks to give effect to what was already contained in the Fifth Schedule and the Regulations made thereunder. In order to set at rest the above controversy raised at various levels that the Government land could also be allotted to non-tribals, the Amendment was brought about in the Mines and Minerals (Regulations and Development) Act, 1957 so as to make it sure that it was never the intention that the Government land could be allotted to non-tribals. The Amendment only retrates the existing position. (Para 175)

       As per G.B. Pattanaik, J. (Dissenting)

       Section 11(5) of the MMRD Act being prospective in nature will have no application to the existing mining leases and, therefore, the leases of the respondents’ can’t be annulled on that score. (Para 213)

       (xvi) Constitution of India—Fifth Schedule—Words ‘peace and good government’ used in—Require widest possible interpretation. (Para 78)