Judges: K.Ramaswamy, S.Saghir Ahmad, G.B.Pattanaik, JJ.

Facts:

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 of Andhra Pradesh granted leases to severalnon-tribal persons to mine tribal lands.

The appellant 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 Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959(hereinafter referred to as regulation) and the Forest Conservation Act, 1980(hereinafter referred to as FCA, 1980 which prohibits transfer of any land in scheduled area to a non-tribal.

The High Court 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 Regulation prohibits transfer of the land in scheduled area by a tribal to a non-tribal natural person. The leases granted in accordance with the provisions of the Mining Act to non-tribals are valid. The FCA, 1980 was not violated by grant of leases or renewal thereof. Therefore, the writ, as sought for, was not available. Resultantly, the writ petitions were dismissed by the High Court. Then a Special Leave Petition was filed before the Supreme Court stating that there was violation of Andhra Pradesh Scheduled Areas Land Transfer Regulation (1959) and the Forest Conservation Act (1980) and Environment protection act,1986 (hereinafter referred to as EPA, 1986).

Issues:

(i) Whether the Government can grant mining lease of lands situated in Scheduled area to a non-tribal?

(ii) Whether the leases are in violation of Section 3 of the Regulation and Section 2 of the FCA, 1980?

(iii) Whether the leases are in violation of the EPA,1986?

Laws:

Constitution of India - Fifth Schedule - Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes residing in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.

Constitution of India - Article 244 - Article 244 of the Indian Constitution deals with the administration of scheduled areas and tribal areas.

Forest Conservation Act, 1980 - Section 2 - Deals with restriction on the dereservation of forests or use of forest land for non-forest purpose.

Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 - Section 3 - Deals with transfer of immovable property by a member of a Schedule Tribe.

Contentions:

Appellant

(i) Under the Regulation transfer of all lands in 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 respondents who are non-tribals is void.

(ii) The word 'person' in Section 3(1) of the Regulation would include government.

(iii) No forest land can be utilized for non-forest purpose without the consent of the Central Government under Section 2 of FC Act.

(iv) Schedule V in the Constitution confers a special power to frame regulation for peace and good government in scheduled area clearly indicates that there should not be any allotment of land to the non-tribals in tribal area.

(v) The term 'peace and good government' should be given a wide interpretation.

(vi) The entire object of the amendment act of 1970 of the Regulation was to prohibit totally transfer of any land in favour of a nontribal member.

(vii) Mining leases within the tribal areas must be annulled, as the mining activities pollutes the tribal atmosphere becoming hazardous to human life.

Respondent

(i) The interpretations as to word "person" as contended by the Appellant is accepted then it would lead to absurdity and provisions of Section 3(1) would be meaningless

(ii) The word 'person' in Section 3(1) of the Regulation does not cover the executive Government of the State nor does it prohibit the Government from transferring its land.

(iii) The leases do not destroy the ecological balance and do not disturb the flora and fauna and the Government has granted the mining leases only after complying with the statutory requirements.

(iv) The regulation in question prior to its amendment does not prohibit transfer of land by any person in favour of non-Scheduled Tribe person but merely postulates that such a transfer must be with the consent of the competent authority.

(v) Neither in the High Court nor in the Special Leave Petition in this Court basic facts have been averred to indicate how the mining lease in question infringe the provisions of the environmental laws

Analysis:

Grant of mining lease of lands situated in Scheduled area to a non-tribal

(i) Article 244(1) of the Constitution read with Fifth Schedule vests with the Governor of the State, the entire governmental power in respect of the schedule areas within the State. 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.

(ii) 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 money lending and all such regulations by the Governor have to be assented to by the President.

(iii) The power conferred upon the Governor of the State under Schedule V of the Constitution are intended to preserve and protect the interest of the tribal in the tribal areas. It cannot be said by any stretch of imagination that all lands within the tribal areas vest in the tribal people. State is the paramount owner of lands and in the garb of preventing the exploitation of tribals from the non-tribals so far as the lands belonging to the tribals are concerned, the State cannot be denuded of its power to exploit resources which vest with the State.

Leases are not in violation of Section 3 of the Regulation and Section 2 of the FCA, 1980

(i) This Regulation has been framed by the Governor in exercise of power conferred upon him under Paragraph 5(2) of the Fifth Schedule to the Constitution. The original Regulation is Regulation 1 of 1959 which was subsequently amended in 1970.

(ii) 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. 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 co-operative society composed solely of members of a Scheduled Tribe.

(iii) Thus, immovable property even belonging to a Scheduled Tribe could be lawfully transferred in favour of a non-Scheduled Tribe member but only with previous sanction of the State Government.

(iv) The core question of interpretation of the word 'person' in Regulation 3(1)(a) under the Amended Act if word 'person' used in Section 3(1)(a) is interpreted to mean to include the State then the expression 'whether or not such a person is a member of a Scheduled Tribe becomes meaningless as the State can never be a member of the Scheduled Tribe.

(v) 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 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.

(vi) Provisions of the Regulation have not been contravened by granting mining leases in favour of the Non-Scheduled Tribe person within the Schedule Area.

(vii) Under Section 2 of the FCA,1980 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 FCA, 1980, 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, the Court cant issue any direction prohibiting the mining activities.

Leases - Violation of the EPA, 1986

(i) The combined reading of the various provisions of EPA,1986 indicate that there must be necessary particulars to find out whether there has been any emission of the environmental pollutant in excess of the standard fixed under the rules and it is only then the question of complaining before a court and taking cognizance of the same would arise. If the averments in the Special Leave Petition are examined from the aforesaid point it would be seen that there is no iota of material to come to the conclusion that on account of the mining operations conducted by the respondents there has been any emission of environmental pollutant in excess of the standard prescribed under the Rules, nor it is possible to hold that there has been any environmental pollution on account of carrying on the mining operations. Thus, 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.

(ii) The purpose of EPA,1986 is to protect the environment from illegal encroachments. The land will be polluted and destroyed by large scale mining activities. The Government has an obligation to protect the land which is the sole means of livelihood of rural communities. Article 21 of the Constitution is wide enough and has included the right to a clean and safe environment, right to livelihood under right to life. Hence, the Government has the duty to abide by the provisions of the EPA,1986. Any lease granted to a public entity who is not a tribal clearly violated the Act. The Court observed that mining activities pollutes the tribal atmosphere, it will destroy the environment and such activities must not be permitted.

Conclusion:

(i) Schedule V of the Constitution conferring power on the Governor to make regulation for administration of tribal area were all aimed to prevent the tribals from exploitation of non-tribals and the prohibition/restrictions were all in relation to the transfer of lands belonging to the tribals in favour of non-tribals and it never intended to have any such prohibition in relation to government land.

(ii) A combined reading of Article 244 and Schedule V of the Constitution indicates 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.

(iii) The word 'person' used in Section 3(1)(a) of the 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.

(iv) Though under Section 2 of the FCA,1980 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.

(v) The petitioner has not been able to make out any case of violation of the provisions of the EPA,1986.

Important Precedents:

(i) Waman Rao v. Union of India

(ii) State of Ohio v. Guy T. Helverirtg

(iii) Superintendent & Legal Remembrancer, State of West Bengal v. Corporation Calcutta

(iv) Virender Gaur Ors. v. State of Haryana &Ors.

(v) Raja Jogendra Narayan Deb v. Debendra Narayan Roy &Ors.

(vi) T.N. GodavamanThintmulkpad v. Union of India &Ors.