SAMATHA v. STATE OF ANDHRA PRADESH AND ORS.

The maxim "reddendo singula singulis" will apply to the interpretation H

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A 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, B and bears no repetition, that the State, by Cabinet form of Government, is a persona ficta a Corporate sole. Constitution empowers the State to acquire, hold and dispose of their property. The Governor in his personal responsibility is empowered to maintain peace and good government in scheduled area. The Fifth Schedule to the Constitution empowers him to regulate allotment of the land by para 5(2)(b) read with Section 3 of the C Regulation of the land be it between natural persons, i.e., tribals and non-tribals; it imposes total prohibition on transfer of the land in scheduled area. The object of the Fifth Schedule and the Regulation is to preserve tribal autonomy, their culture and economic empowerment. to ensure social, economic and political justice for preservation of peace and good D government in the Scheduled Area. Therefore, all relevant clauses in the Schedule and the Regulation should harmoniously and widely be read so as to elongate the aforesaid constitutional objectives and dignity of person to the. Scheduled Tribes, preserving the integrity of the Scheduled Areas and ensuring distributive justice as an integral scheme thereof. Clauses (a) and (c) of sub para (2) of para 5 of the Fifth Schedule prohibits transfers E Inter vivos between tribals and non-tribal natural persons and prevents money-lenders to exploit the tribals. Clause (b) intends to regulate allot- ment 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 p 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 G natural persons as well as juristic person and constitutional Government. This liberal and wider interpretation would maximise allotment of Govern- ment 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 Constitu- H tion. The word "person" would be so interpreted as to include State or

SAMATHA v. STATE[K.RAMASWAMY,J.) 409

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 of para 5(2) of the Fifth Schedule of the Constitution and Section 3 of the Regulation. If the word 'person' is 1 interpreted to mean only natural persons, it tends to defeat the object of the Constitution, the genus and the Regulation, its species. As a corollary, by omission in the final draft of the Fifth Schedule of the power of the State Government to transfer its land to the non-tribals with the sanction of a competent authorised officer or authority would, by interpretation brought into effect and the object of the Constitution would easily be defeated. We are, therefore, inclined to take the view that the word 'person' includes the State Government. The State Government also stands C ·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 sophisti- cated 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. F The word "person" in Section 3(l)(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 persons in the generic sense, including the Corporation ag- gregate or Corporation sole, State, Corporation, partnership firm, a com- G pany, 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 ap- plicable to them either as 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 H

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A 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 B the Regulation as was upheld by this Court in P. Rami Reddy & Ors. Etc. v. State of A.P. & Anr. Etc., [1988) Supp. 1 SCR 443; Lingappa Pochanna Appelwar v. State of Maharashtra and Anr., [1985) 1 SCC 479 and Manchegowda and Ors. v. State of Kamataka and Ors., [1984) 3 SCC 301. There is no internal and external contradiction in this process of har- monious and purposive interpretation of para 5(2)(a) of the Fifth Schedule C which regulates transfers between natural persons; Para 5(2)(b) encompas- ses 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. The Regulation prevents exploitation of the tribals through the State Government; from the other end, it does not allow parting with of D their land and prevents induction of non-tribals into the scheduled area by allotment of the land or by regulating allotment of the land, be it private or private corporate aggregate. This interpretation per se, therefore, is public law interpretation to subserve the constitutional purpose without recourse to private law principles.

E In Minerva Mills Ltd. & Ors. v. Union of India & Ors., [198111 SCR 206, the Constitution Bench had held that the edifice of our Constitution is built upon the concept crystalised in the Preamble. We "the People" resolved to constitute ourselves a socialist State which carries with it the obligation to secure to the people, justice · social, economic and political. F We, therefore, put Part IV into our Constitution containing Directive Principles of State Policy which specifies the socialistic role to be achieved. In D.S. Nakara & Ors. v. Union of India, [1983) 2 SCR 165 at 187F to 189H, another Constitution Bench had dealt with the object to amend the Preamble by the Constitution (42nd Amendment) Act and pointed out that the concept of Socialist Republic was to achieve socio- economic revolution to end poverty, ignorance and disease and inequality of opportunity. It was pointed out that socialism is a much misunderstood word. Values deter- mine contemporary socialism · pure and simple. The principal aim of socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people especially to provide security from cradle to

SAMATIIA v. STATE(K.RAMASWAMY,J.] 411

grave. The less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be prohibited. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. The Preamble directs the centers of power, Legislature, Executive and Judiciary - to strive to set up from a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society under rule of law though it is a long march, but during the journey to the fulfilment of goal every State action including interpretation whenever taken, must be directed and must be so interpreted as to take , the society towards 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/ad- C ministrative 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 D Constitution (First Amendment) Bill, had stated that the Directive Prin- ciples are intended to bring about a socio-economic revolution and to create a new socio-economic 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 Indians who would be able to participate in the fruits of freedom and development and exercise the fundamental rights. E

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 F pages 230 to 357 do indicate that the Directive Principles intended to provide life blood to social, economic and political justice to all people. Some of the members like Mahavir Tyagi, Professor K.T. Shah, Dr. Saxena Etc. pleaded for incorporation of socialism as part of the Preamble but Dr. Ambedkar the father of the Constitution, while rejecting the amendment, made it clear that the socio-economic justice provided in the Directive G Principles and the Fundamental Rights given in Chapter III would meet the above objective without expressly declaring India as a socialist State in the Constitution. Alladi Krishnaswaniy Ayyer supported Dr. Ambedkar and had stated that "the constitution, while it does not commit the country to any particular form of economic structure of social adjustment, gives H

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A ample scope for the future legislature and the future Parliament to evolve any economic order and undertake any legislation they choose in public interest". Pandit Jawaharlal Nehru in his speech also emphasised the need .. to enter into a new social order in which "there would be valid growth in the standard of living of all the people of India with equitable distribution of wealth and equality of opportunity and status of all". Dias, in his "Jurisprudence" (5th Edn.) on 'distributive justice' in Chapter 4 at page 66, has stated that justice is not synonymous with equality; equality is one aspect of it. Justice is not something which can be captured in a formula once and for all. It is a process, a complex and shifting balance between many factors including equality. Justice is never given, it is always a task to be achieved. Justice is just allocation of advantages and disadvantages, preventing the abuse of power, preventing the abuse of liberty by providing facilities and opportunities to the poor and disadvantaged and deprived social segments for a just decision of disputes adapting to change.

D Justice P.B. Sawant, former Judge of this Court, in his "Socialism under the Indian Constitution" had stated at page 2 that today socialism has come to be associated with certain social and economic arrangements and a way of life in a socialist economy that the resources of the society are owned by the State as a whole and are used for the benefit of all,. for ensuring all basic human rights to every member of the society and not for the profit of a few. By human rights is meant - all economic, political, social and cultural rights which are necessary for an individual to realise his full potential. In a socialist society, social, political and economic inequalitie~ 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 economies that inculcates G 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 H Socialism Retrospect and prospect" has stated at page 46-47 that a socialist

SAMA1HA v. STATE[KRAMASWAMY,J.] 413

society has not only to bring about equitable distribution but also to maximise production. It has to solve problems of unemployment, low income and mass poverty and bring about a significant improvement in the national standards of living. At page 47, he has stated that socialism, therefore, requires deliberate and purposive action on the part of the State in regard to both production and distribution and the fields covered are not only savings, investment, human skills and use of science and technol- ogy, but also changes in property relations, taxation, public expenditure, education and the social services. A socialist society is not just a give-away society nor is it only concerned with distribution of income. H must bring about full employment as also an increase in productivity. c 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 E and opportunity on equal footing is the fundamental condition of a socialist society. The more the talent from backward classes and areas get recogni- tion and support, the more socialist will be the society. Public sector and private sector should harmoniously work. The Indian approach to socialism would be derived from Indian spiritual traditions. Buddhism, Jainism, F Vedantic and Bhakti Hinduism, Sikhism, Islam and Christianity have all contributed to this heritage rooted to respect for human dignity and human equality. While imposing restrictions on the right to private property even to the extent of abolishing it where necessary in the social and public interest, it permits private enterprise in economic activity and makes for a G mixed economy rather than a completely socialised economy. It abhors violence and class war and heirarchical class structure and pins its faith on non-violence, sacrifice, and dedication to the service of the poor and as a natural consequence, its implementation is envisaged through Parliamen- tary democracy planned economy and the rule of law rather than through a violent revolution or a dictatorship in any form. Indian socialism, there- H

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A fore, is different from Marxist or scientific socialism.

To achieve the goal set down in the Preamble, the Directive Prin- ciples and fundamental rights, the Constitution envisaged planned economy. The Planning Commission has been given the constitutional B status for the above purpose. The Third Five Year Plan document extracts the basic features of the socialist pattern of society thus :

11 Essentially, this means that the basic criterian for determining .....

lines of advance must not be private profit, but social gain, and that the pattern of development and the structure of socio- c 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 rela- tively less privileged classes of society, and there should be progres- sive reduction of the concentration of incomes, wealth and D economic power ....... The socialist pattern of society is not to be regarded as some fixed or rigid pattern. It is not rooted in any doctrine or dogma ....... It is neither necessary nor desirable that

E the economy should become a monolithic type of organisation offering little play for experimentation either as to forms or as to modes of functioning. Nor should expansion of the public sector mean centralization of decision-making and of exercise of authority........... The accent of the socialist pattern of society is on - the attainment of positive goals, the raising of living standards, the enlargement of opportunities for all, the promotion of enterprise among the disadvantaged classes and the creation of a sense of partnership among all sections of the community. These positive goals provide the criteria for basic decisions. The directive prin- ( ciples of State policy in the Constitution have indicated the ap- proach in broad terms; the socialist pattern of society is a more concretised expression of this approach. Economic policy and institutional changes have to be planned in a manner that would secure economic advance along democratic and egalitarian lines......"

Mr. G.D.H. Cole, one of the leading socialist of U.K., in his speech H "The Growth of Socialism" published in 'Law and Opinion in England in

SAMATIIA v. STATE (K RAMASWAMY, J.] 415 the 20th Century' (Morris Ginsberg, Editor) at page 79-80, has stated that socialism is a movement aiming at greater social and economic equality and using extended State action as one of its methods, perhaps the most distinctive but certainly not the only one needed to be taken into account. The affairs of the community shall be so administered as to further the cornn{on interests of ordinary men and women by giving to everyone, as far as possible, an equal opportunity to live a satisfactory and contended existence, coupled with a belief that such opportunity is incompatible with the essentially unequal private ownership of the means of production. It requires not merely collective control of the uses to which these are to be put, but also their collective ownership and disinterested administration for the common benefit. This basic idea of socialism involves not only the socialisation of the essential instruments of production, in the widest sem.e, but also the abolition of private incomes which allow some men to live without 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 Wear Etc. v. Union of India & Ors., [1979] 1 SCR 1009, the F Constitution Bench had held at pages 1030-31 that the concept of socialism or socialist state 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 eschewed and the pragmatic one should be adapted. So long as the private ownership G of an industry is recognised and governs an overwhelmingly large propor- tions of an economic structure, it is not possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interest of another section of the public, namely, the private ownership of the undertaking. In othei: words, the object of intermediation should be co-existence and flourishing H

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A of mixed ~~<momy. In State of Karnataka v. Shri Ranganatha Reddy & Anr. Etc., (1978] 1,SCR 641, a Bench of nine Judges of this Court considered nationalisation of the contract carriages. In that behalf, it was held that one of the principal aims of socialism is the distribution of the material resour- ces of the community in such a way as to subserve the common good. This B principle is embodied under Article 39(b) of the Constitution as one of the essential directive principles of State polity. Therein, this Court laid stress on the word 'distribute' as used in Article 39(b) being a key-word of the provision emphasising that "The key word is distribution and the genius of the Article, if we may say so, cannot but be given full play as it fulfils the basic purpose of restructuring the economic order.. Each word in this C Article has a strategic role and the whole Article is a social mission. It embraces the entire material resources of the community. Its task is to distribute such resources, its goal is to undertake distribution as best to subserve the common good. It reorganises by such distribution the owner- ship and control." D In Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. & Anr., (1983] 1 SCR 1000 another Constitution Bench reiterated the above view; while considering Article 39(b) of the Constitution, at page 1020, this Court had held that the broad egalitarian principle of economic justice was implicit in every directive principle and, therefore, a law designed to E promote a directive principle, even if it came into conflict with the formalistic and doctrinaire view of equality before the law, would most certainly advance the broader egalitarian principle and desirable constitutional goal of social and economic justice for all. If the law was aimed at the broader egalitarianism of the Directive Principles, Article 31C F protected the law from needless, unending 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 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

SAMATIIA v. STATE[K.RAMASWAMY,J.) 417

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A 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. The regulation and its predecessor law in operation in the respective areas regulate transfer between a tribal and non-tribal with prior permission of B 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 State 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 cooperative society composed solely of tribals.

C 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 outcome of separation of ownership and possession. It may be either rightful or wrongful. If it is rightful, it is an encumbrance on the owner's title but if it is wrongful the r transferee acquires no lawful right to enjoy the interest therein. Section 11(5) of the Mines and Minerals (Regulation and Development) Act, 1957 F brought by State Amendment Act prohibits grant of mining lease in Scheduled Areas in favour of the non-tribals. It reads as under :

"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 tribes : G 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 is composed solely H of members of Scheduled Tribes.

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Explanation: For the purpose of this sub-section; A

(a) the expression "Scheduled Areas" shall have the same mean- ing assigned to it in clause (25) of article 366 of the Constitution of India; and B (b) the expression "Scheduled Areas" shall have the same meaning assigned to it in paragraph 6 of the Fifth Schedule to the Constitution of India."

It brings out and effectuates public policy envisaged in the Fifth Schedule of the Constitution and the Regnlation. Undoubtedly, it is prospective but the underlying principle would permeate the purpose of interpretation that the State Government, being a person is regulated under Section 3 of the Regulation prohibit transfer of their land situated in the Scheduled Areas in which mines are discovered or for any other purpose. G.O. Ms. No. 971/Rev. B of 1969 provides that Government land should not be given to non-tribals. The contention of Shri Sudhir Chandra that the Government being empowered to operate the Regulation, by implication, the Regulation does not apply to Government land per force, is untenable in view of the above unambiguous constitutional, legislative and executive policy. The further contention that there is no need for its incorporation and that the Government would be prohibited from trans- E ferring for public purpose, is untenable. They do not detract from legal reasoning and purposive interpretation. The transfer of such land for a public purpose, viz., to construct a hospital 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 ~tself. The contention, therefore, that the Regulation prohibits transfer of Government land for its public purpose is unsus- tainable. The further contention that even philonthrophic persons imbued with social zeal and spirit to ameliorate the social status and economic position of the tribals, would also be preventei:l 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 cin non-tribals philonthrophist to organise, though tribals and a Cooperative Society composed solely of tribals, actions to ameliorate socio-economic status of the tribals in the Scheduled Area. The further H

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A 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 exploited through non- tribals, by exploitation of tribals, the minerals could be exploited through an appropriate scheme, without disturbing ecology and forest, by the B tribals themselves, either individually or through Cooperative Societies composed solely of the tribes with the financial assistance of the State or its instrumentalities. It would itself would be an opportunity to the tribals to improve their social and economic status and a source of their economic endowment and empowerment and would give them dignity of person, social and economic status and an opportunity to improve their excellence. C In the Constituent Assembly, a demand was made for allotment of mining areas in North-Eastern States to the autonomous bodies; the Constituent Assembly instead approved payment of royalty. At many a place, the minerals deposits may be situated in tribal area. In the light of the language used in Section 3 of the Regulation and Section 11(5) of Mining Act, we have examined the question taking aid of the source thereof, i.e., para 5(2)(a) and (b) of the Fifth Schedule and interpreted the word 'person' to include State Government.

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 land 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 nation. The competing rights of tribals and the State are required to be adjusted without defeating rights of either. The Gover- nor 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.

Right to health has been declared to be a fundamental right ht CERC H case; right to education is a fundamental right under Article 46 as held by

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this Court in Maharashtra State Board of Secondary and Higher Secondary A Education v. K.S. Gandhi, (1991] 2 SCC and J.P. Unni Krishnan v. State of A.P., (1993] 1 SCC 645; 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. State of Bihar, AIR (1991) SC 420; right to portable water is a fundamental right as held by this Court in State of Kamataka v. Appa Balu B Ingale & Ors., [1995] Supp. 4 SCC 469; right to shelter has been held to be a fundamental right in catena of .decisions of this Court starting with Olga Tellis 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 right provided in Part III of the Constitution. c 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 iii the Scheduled Areas to the non-/tribals for exploitation of mineral resources, it transmits the corelative above constitutional duties D 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: E (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; F (c) supply of portable 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 G confident in pursuit of employment;

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

(t) establishment of hospitals and camps.for providing free medi- H

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A cal-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 or 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 from income-tax liability, may be obtained; and the Centre D 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/Jessee concerned so that the con- stitutional objectives of social, economic and human resource empower- ment of the tribals could be achieved and peace and good government is E achieved in Scheduled Areas. We have not examined the other Acts in detail but as and when such need arises, they may be examined in the light of the language used therein and the law.

Mining lease of Government land is whether outside the Regulation. F The question then is whether grant of mining leases 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 con- clusion that the word 'person' would include the State Government, the necessary corollary would be that the transfer of the land in Scheduled G Area by way of lease, for mining purpose in 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-tribals 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 H mining leases to Corporation aggregate etc. except to its instrumentality.

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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 renewal because it postulates the existence of a prior lease. It has been brought out from record that some of the respondents-companies have got transfer of mining lease in their favour from the individual lessees. This Court in Mis. Victoria Granites (P) Ltd. v. P. Rama Rao & Ors., IT (1996) 9 SC 303 has held that the transfer of mining leases by an individual in favour of a company is void and in effect, would defeat the object of Article 39(b) of the Constitution and would nullify the object of distributive justice of the largess of the State to accord economic justice to individuals to improve socio-economic status and to secure dignity of persons. Therefore, the transfer of lease or renewal of mining lease in favour of some of the respondents is void as it defeats the constitutional and statutory objectives.

It is seen that in one case, the transfer was claimed to have been made in favour of the State instrumentalities, i.e., A.P.S.M.D. Corporation D Ltd. It has already been held that transfer of the Government land in favour of its instrumentalities, in the eye of law, is not a transfer but one of

- entrustment of its property for public purpose. 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 E 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.

The A.P.S.M.D. is required to exploit minerals in conformity with law, namely, Forest Conservation Act, 1980, E.P. Act etc.

ENCLOSURES - WHETHER GOVERNMENT CAN LEASE THE LANDS TO MINING OPERATION

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. H

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A Therefore, the lands in the enclosures being cultivated by the tribals ate 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.

WHETHER LEASES ARE IN VIOLATION OF F.C. ACT OR E.P. ACT B 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 C 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 D prohibition to grant mining lease or renewal thereof by the State Govern- ment. 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 devised, namely, publication in the State Gazette constituting any E 1and as a reserved forest specifying its situation, its limits and a declaration constituting such land as reserved forest. A Forest Settlement Officer gets appointed to consider the objections, if any, from the persons claiming any right, title and interest in any land covered by the notification. Pending consideration thereof, provisions exist in the respective Acts prohibiting clearance of the forest or deforestation of the forest or depletion of forest wealth and resultant consequences. After consideration of objections, if any, and rejection of the objections and claims, subject to preserving the easmentary right of way, water course or use of water or right to pastures or right to forest produce, the Forest Settlement Officer would determine the right of parties and would direct the concerned department to pay compensation determined on the basis of the principles laid in the Act with a right of appeal thereon. Thereafter, a declaration would duly be publish- ed in the Gazette with fixed boundaries that the "aforesaid area are a reserve forest". Similar is the provision and procedure in the Wild Life Sanctuary under Wild Life (Protection) Act, 1972. Therein too, provisions have been made declaring them as sanctuary for preservation and protec-

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tion of wild life etc. However, the right to residence and right to collect A forest produce, forest goods or agriculture etc. to the tribals is regulated under the appropriate provisions. ·

The words 'forest' or 'forest land' have not been defined in the A.P. Act or the Central Forest Act. In collins English Dictionary (1979 Edn.) B the word 'forest' has been defined as page 568 as "a large wooded area having a thick growth of trees and plants, the trees of such an area, something resembling a large wooded area especially in density". Shorter Oxford English Dictionary defines 'forest' as "an extensive tract of land covered with trees and undergrowth, sometimes intermingled with pasture". In Webster's comprehensive Dictionary (International Edn.) at page 495, C 'forest' has been defined as "a large tract of land covered.with a natural growth of trees and underbrush, in English Law wild land generally belong- ing to the crown and kept for the protection of game, Of, pertaining to, or inhabiting woods or forest. To overspread or plant with trees; make a forest ot''. The 'forest cover' means "The sum total of vegetation in a forest; more especi<.illy, 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 Dic- tionary (fifth ed.), Vol. 2, at page 1014 'forest' means "a place privileged by royal authority or by prescription for the peaceable abiding and nourish- ment of the beats 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 p 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 inter- G mingled with trees with pastures, be it of natural growth or manmade forestation. The FC Act, as amended by 1988 Act was enacted to check deforestation and conservation of forest. Sub-section (2) with a non- obstante clause on deforestation of forest or use of forest land for non- forest purposes; regulates the forest and provides that notwithstanding any other law for the time being in force in the State, no State Government or H

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