# SAMATHA v. STATE OF ANDHRA PRADESH AND ORS

- **Citation:** [1997] Supp. 2 S.C.R. 305
- **Court:** Supreme Court of India
- **Decided:** 1997-07-11
- **Case number:** Civil Appeal Nos. 4601-02 A and 4603/97 of 1997
- **Bench:** K. Ramaswamy, S. Saghir Ahmad, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samatha-v-state-of-andhra-pradesh-and-ors-16127
- **Pages:** 202

## Headnote

Constitution of India, 1950: A1ticles 14, 17, 21, 23, 38, 39, 46, 162, 244,
245, 298 Fifth Schedule-Para 5.
A
B
c
Rese1ved Forest Area--Grant of mining leases by Govemment to 11011t1ibals-Pennissibility of-Object of Fifth Schedule discussed-'Reg11latio11'
includes 'Prohibition '-Executive power under Alticle 298 and legislative
power under Arlicle 245-Power to dispose ·Govemment property is subject to
Fifth Schedule--legislative and constitutional history of protection to
Scheduled TTibes discussed.
D
Andhra Pradesh Scheduled Area Land Tramfer Regulation, 1959 :
Section 3(1)(a), 3(4).
Schedrtled Tribe-Immovable
property situated in agency
tract~~Prohibition for transfer inf avour of 1wn-tTibals-Word 'person' in first E
paTt of clause (a) includes State Govemment and its instiumentalities-Word ·
'Person' used elsewhere refers to only natural persons-Grallt of mining lease
in rese1ved forest inf avour of non-t1ibals held void-Transfer of Governmellt
land in favour of public corporation for public pu1pose held not
prohibited-Transferee should conllibute for social, economic and educationF
al development of scheduled TTibes-Scope a11d power of Government to
dispose prope1ty i11 Scheduled area-Constitutional limitation 011 such properties.
Scheduled Tribe-Right to life and economic .empowennent.
Mi11es a11d 111i11erals (Regulation and Develop111e11t) Act, 1957: Section
11(5) (As ame11ded in 1991)
Scheduled Area-Mining leases in:-Grant to non- tlibals-Validity of
Environment (Protection) Act, 1986.
305
G
H
306
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A
Rese1ved Fores~ining leases in--Orant and renewal by State in
favour of 11on-t1ibals-Effect and validity of
Forest (Conservation) Act, 198(}-Section 2-11 Reserved forests-Applicability of Act to.
B
Transfer of Property Act, 1872-Section 105
Leas-Definition of
Words and Phrases :
C
'Person '-Meaning of-In the context of A.P. Schedule Area Land
Transfer Regulation, 1959.
'Peace and Good Govemment'-Meaning and scope of-In the context
of Para 5(2) of Fifth Schedule to•Constitution of India 'Forest and Forest
Land'-Meaning of-'Socialism'-Meaning of-In the context of Preamble to
D the Constitution of India.
State of Andhra Pradesh granted mining leases to several non-tribal
persons in the reserved forest area of Anantagiri Manda! of Visakhapatnam District-The appellant-Society, claiming to protect the interests
E and life of the Scheduled Tribes in the area, filed two Writ Petitions in
public interest before the Andhra Pradesh High Court questioning the
power of the Government to grant mining leases in favour of non-tribals
in the scheduled area. It sought issue of mandamus to terminate the
mining leases which had been granted and/or renewed in favouir of the
private respondents inter alia on the grounds that (i) the said leases
F
contravened the provisions of Andhra Pradesh Scheduled Area Land
Transfer Regulation, 1959 (As amended in 1970) as well as the provisions
of the Forest Conservation Act, 1980; (ii) Such leases were prohibited
under Section 11(5) of the Mines and Minerals (Regulation and Develop·
ment) Act, 1957 (As amended by 1991 Act).
G
A Division Bench of the High Court dismissed the Writ Petitions
holding that (i) the word 'Person' in Section 3(1) of the Regulation does
not include the Government and as such the Government was not
prohibited from transferring the Government land in favour ofnon-tribals
within the scheduled area; (ii) The Regulation does not prohibit transfer
H of the Government land by way of lease to the non-tribals; (iii) in order to
._
-
SAMATHA v. STATE
307
prohibit grant of mining lease in favour of the non-tribals within the A
scheduled area Section 11 (5) of the MMRD Act was introduced in the year
1991. But the said provision was prospective in nature and would not apply
to the existing leases; (iv) Prior approval of the Central Government under
Section 2 of the Forest ((:onservation) Act was not required where the land
in question has already been

## Text

_Characters 0–39,985 of 512,120. This is a partial read: ask again with offset=39985 for what follows._

-
SAMATHA
v.
STATE OF ANDHRA PRADESH AND ORS.
JULY 11, 1997
[K. RAMASWAMY, S. SAGHIR AHMAD
AND G.B. PATTANAIK, JJ.]
Constitution of India, 1950: A1ticles 14, 17, 21, 23, 38, 39, 46, 162, 244,
245, 298 Fifth Schedule-Para 5.
A
B
c
Rese1ved Forest Area--Grant of mining leases by Govemment to 11011t1ibals-Pennissibility of-Object of Fifth Schedule discussed-'Reg11latio11'
includes 'Prohibition '-Executive power under Alticle 298 and legislative
power under Arlicle 245-Power to dispose ·Govemment property is subject to
Fifth Schedule--legislative and constitutional history of protection to
Scheduled TTibes discussed.
D
Andhra Pradesh Scheduled Area Land Tramfer Regulation, 1959 :
Section 3(1)(a), 3(4).
Schedrtled Tribe-Immovable
property situated in agency
tract~~Prohibition for transfer inf avour of 1wn-tTibals-Word 'person' in first E
paTt of clause (a) includes State Govemment and its instiumentalities-Word ·
'Person' used elsewhere refers to only natural persons-Grallt of mining lease
in rese1ved forest inf avour of non-t1ibals held void-Transfer of Governmellt
land in favour of public corporation for public pu1pose held not
prohibited-Transferee should conllibute for social, economic and educationF
al development of scheduled TTibes-Scope a11d power of Government to
dispose prope1ty i11 Scheduled area-Constitutional limitation 011 such properties.
Scheduled Tribe-Right to life and economic .empowennent.
Mi11es a11d 111i11erals (Regulation and Develop111e11t) Act, 1957: Section
11(5) (As ame11ded in 1991)
Scheduled Area-Mining leases in:-Grant to non- tlibals-Validity of
Environment (Protection) Act, 1986.
305
G
H
306
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A
Rese1ved Fores~ining leases in--Orant and renewal by State in
favour of 11on-t1ibals-Effect and validity of
Forest (Conservation) Act, 198(}-Section 2-11 Reserved forests-Applicability of Act to.
B
Transfer of Property Act, 1872-Section 105
Leas-Definition of
Words and Phrases :
C
'Person '-Meaning of-In the context of A.P. Schedule Area Land
Transfer Regulation, 1959.
'Peace and Good Govemment'-Meaning and scope of-In the context
of Para 5(2) of Fifth Schedule to•Constitution of India 'Forest and Forest
Land'-Meaning of-'Socialism'-Meaning of-In the context of Preamble to
D the Constitution of India.
State of Andhra Pradesh granted mining leases to several non-tribal
persons in the reserved forest area of Anantagiri Manda! of Visakhapatnam District-The appellant-Society, claiming to protect the interests
E and life of the Scheduled Tribes in the area, filed two Writ Petitions in
public interest before the Andhra Pradesh High Court questioning the
power of the Government to grant mining leases in favour of non-tribals
in the scheduled area. It sought issue of mandamus to terminate the
mining leases which had been granted and/or renewed in favouir of the
private respondents inter alia on the grounds that (i) the said leases
F
contravened the provisions of Andhra Pradesh Scheduled Area Land
Transfer Regulation, 1959 (As amended in 1970) as well as the provisions
of the Forest Conservation Act, 1980; (ii) Such leases were prohibited
under Section 11(5) of the Mines and Minerals (Regulation and Develop·
ment) Act, 1957 (As amended by 1991 Act).
G
A Division Bench of the High Court dismissed the Writ Petitions
holding that (i) the word 'Person' in Section 3(1) of the Regulation does
not include the Government and as such the Government was not
prohibited from transferring the Government land in favour ofnon-tribals
within the scheduled area; (ii) The Regulation does not prohibit transfer
H of the Government land by way of lease to the non-tribals; (iii) in order to
._
-
SAMATHA v. STATE
307
prohibit grant of mining lease in favour of the non-tribals within the A
scheduled area Section 11 (5) of the MMRD Act was introduced in the year
1991. But the said provision was prospective in nature and would not apply
to the existing leases; (iv) Prior approval of the Central Government under
Section 2 of the Forest ((:onservation) Act was not required where the land
in question has already been broken; (v) Forest (Conservation) Act applies B
to the reserved forest and since it was not established as to the extent of
the land covered by the mining leases which form a part of the reserved
forest and since the joi;1t survey conducted indicated that there was no
lessee who was occupying the reserved forest area, except in one case where
to an extent of two thousand metres of the mining lease forms a part of
the reserved forest, the validity on account of the ·non-compliance of the C
Conservation Act cannot be gone into.
Against the Judgment of the High Court the appellant preferred
appeals before this Court.
In the connected appeal, the appellant M/s. Hyderabad Abrasives and D
Minerals, was granted mining leases for 20 years in 1974 in the Peddamaredumilli reserved forest area in East Godavari District of Andhra
Pradesh. Some other persons were also granted mining leases in East
Godavari District. M/s. Sakti, a voluntary social organisation, filed a writ
petition before the Andhra Pradesh High Court challenging the grant of E
leases by the Government. Another Division Bench of the High Court took
a contrary view holding that (i) grant of mining leases was illegal; (ii) the
word 'person' used in Section 3 of the Regulatfon includes Government; (iii)
any lease to the non-tribals even of a Government land situated in
scheduled area was in violation of Section 3 and therefore void; (iv) a
mining lease in a forest area for non-forest purpose of renewal thereof,
without prior approval of the Central Government was in violation of
Section 2 of the Forest Conservation Act; Accordingly,- the DivisiOn Bench
directed the Governmtnt to prohibit mining operations in scheduled area
except that the mines stacked on the surface be permitted to be removed
after obtaining proper permits.
Against the decision of the High Court an appeal was preferred before
this Court, contending that :
(i) It is permissible to give a different meaning to the same word used
F
G·
in the same statute depending upon the object sought to be achieved by the H
308
SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A statue and, therefore, it would be within the principles of interpretation to
interpret the word 'person' occuring in the First Part of Section 3(1)(a) to
include the State Government whereas the same wor~ 'person' used in the
latter part of Section 3(1)(a) may be interpreted to mean'an individual'; (ii)
The word 'Regulation' in para 5(2)(b) of the Fifth Schedule requires to be
B interpreted broadly to preserve not only the tribal autonomy but also to
subserve distributive justice in favour of the tribals in the matter of assignment of the land belonging to the Government in their favour; This Clause
prohibits the allotment of land to non-tribals; (iii) The term 'peace aud
Good Government' in para 5(2) of the Fifth Schedule should be given wide
interpretation; (iv) The expression 'Regulate the allotment of Land to
C members of Scheduled Tribes in such area; in Para 5(2)(b) of the Schedule
should be construed to mean that the Governor should frame Regulation
ensuring that laud does not pass out from tribals and the land allotments
are made exclusively to tribals and the distribution of land amongst them
inter se can be regulated; (v) Under the amended Section 3(1) of the Andhra
D Pradesh Scheduled Area land Transfer Regulations, 1959 transfer of immovable, property situated in the scheduled area to non-tribal is prohibited.
The object of amendment of regulation was to prohibit totally transfer of
any land in favour of a non-tribal member within the agency tracts; (vi) In
view of Section 11 (5) of the Mines and l'v'i11erals (Regulation and Development) Act, 1957, no mining lease can be granted in favour of any person who
E is not a member of Scheduled Tribe; (vii) Grant of mining leases was in
violation of Environment Protection Act, because the mining activities were
not only polluting the tribal atmosphere and natural flora and fauna but
were also becoming hazardous to human life; and (viii) In view of the
embargo contained hi Section 2 of the Forest (Conservation) Act prior
F permission of Central Government not having been obtained the mining
activities within the forest area cannot be permitted to be continued.
Disposing the appeals, this Court
HELD:
G
By the Court
1. The word 'person' in section 3(1)(a) of the Andhra Pradesh
Scheduled Area land transfer Regulation, 1959 includes the State Government. Consequently, the transfer of land in the scheduled area by way of
H lease, for mining purposes in favour of non-tribals stands prohibited under
-
-
SAMATHA v. STATE
309
the Fifth Schedule read with Section 3 of the Regulation.
A
2. However, transfer of the government land in favour of its instrumentalities for public purpose stand excluded from the prohibition
under Para 5(2)(b)_ of the Fifth Schedule and Section 3(1)(a) of the
Regulation. The leasee or licensee should incur atleast 20% of the net profit
for social and economic empowerment of tribals as well as for maintenance B
of ecology.
3. In the light of the provision contained in clause (a) of sub-para
(2) of Para 5 of the Fifth Schedule, there is implied prohibition on the
State's power of allotment of its land to non-tribals in the scheduled areas. C
4. 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 Fifth Schedule to regulate allotment of the Government land in the scheduled areas.
D
5. Section 2 of the Forest (Conservation) Act,1980 prohibits de-reservation of forest or use .of any forest land for any non-forest purpose of
assignment by way of lease or otherwise of any portion of land to any
private person other than government controlled agency. It is, therefore,
'necessary for the State Government to obtain prior permission of the E
Central Government for (i) de-reservation of forest; and (ii) the use of the
forest land for non-forest purpose.
6. Section 11(5) of the Mines and Minerals (Regulation and Development) Act, 1957 prohibits grant of mining lease in scheduled areas in F
favour of non-tribals.
7. The meaning of the expression 'forest land' requires extended
meaning given so as to protect forest land from deforestation to maintain
ecology and to prevent environmental degradation and hazardous effects
on Right to life and flora' and fauna.
G
Per Ramaswamy, J.
1. Right from the inception of the Colonial administration, the
agency areas were treated distinctly from other areas. Tribals were
protected from exploitation; their rights and title to enjoy the lands in their H
310
SUPREME COURT REPORTS (l.997) SUPP. 2 S.C.R.
A occupation and their autonomy, culture and ecology were prest:rved; infiltration of the non-tribals area was prohibited. Sugalis, i.e.
Khanabadosh, non-tribals, by migration became in due course, tribals.
Even those migrant non-tribals were prohibited to purchase the lands in
agency areas from the tribals except with the prior sanction of the officer
B appointed by the Government in that behalf. [360-E-F]
2. It is clear from the legislative history that from the beginning of the
British rule in India, the Legislature has adopted the policy to exclude some
areas totally and some partially from the governance through the Executive
·: Council and given power to the Governor of the Province and the Governor
C General/Viceroy to administer them with their special responsibilities. The
partially excluded areas had the dual control by the Executive with primacy
given to the Governor of the Province to apply or to exclude the application
of the laws made by the legislature or the Executive Council to the partially
excluded schedule areas. In either event the object was to prevent the tribals
D
to get into the wiles of the money- lenders and preservation of their property
and customs and to allow the tribals autonomy of their living in accordance
with their customs and culture. [365-D; E; F]
3. Agriculture is the only source of livelihood for Schedule Tribes,
apart from collection and sale of minor forest produce to supplement their
E income. Land is their most important natural and valuable asset and
imperishable endowment from which the tribals derive their sustenance,
social status, economic and social equality, permanent place of abode and
work and living. It is a security and source for economic empowerment.
Therefore, the tribes too have great emotional attachment to their lands.
F
The land on· which they live and till, assures them equality of status and
dignity of person and means of economic and social justice and potent
weapon of economic empowerment in social democracy. [354-F; G]
4. A survey of various statutes imposing restrictions on alienation of
lands allotted to Scheduled Tribes discloses enormity of the yawn:ing gap
G between making of the various Acts and their proper enforcement. The
magnitude of the problem is of national importance which need to be
tackled and solved by Parliamentary law and effective enforcement.
[36S-C; D]
5. As a part of on-going industrial advancement, large industries or
H projects are being set up or constructed in the Scheduled areas displacing
-
SAMATHA v. STATE
311
the Tribals and rendering them impoverished landless labourers. When A
their lands are acquired for public purpose, the Government should give
alternative lands for rehabilitation and easy loans for reclamation. Law
relating to prohibition of alienation and restoration of lands to tribes
must be simple, less cumbersome and result-oriented. The machinery
must be speedy and the officers must have compassion and sense of B
dedication and direction to ameliorate the economic status of the tribes
to assimilate them into national main-stream. (374-D, EJ
Prof. C.V.F. Haimendrof," Tribes of India· The Strnggle for Survival";
D1: P. V. Ramesh, "Land Refonns Land Transfer in Scheduled Area: published byA.P. Judicial Academy as "Scheduled Tribal and Social Justice" page c
178; S.N. Dubey and Ratna Murdia, "La11d Alie11atio11 and Restoratio11 in
Tribal Communities in India" (Himalaya Publishing House); Dr. G.P.
Reddy "Politics of T1ibal Exploitatio11" pages 66-67; Dr. Ramakant Nath,
B.M. Boal and N. Soreng, "The Khonds a11d Jau11gs in A11dhra Pradesh Hand
Book for Development" The Reports of the Commissioner of SCs, and STs, D
1980-81 and 1984-85; B.L Maharda, IAS "History and Culture of Giriasias",
referred to.
6. The Andhra Pradesh Scheduled Areas Land Transfer Regulation,
1959 came into force on March 4, 1959 in Andhra area and in Telangana
ar~a with effect from December 1, 1963. The definition of transfer under
Section 2(g) is a com11rchensively wide definition except testamentary
disposition by a tribal to another tribal so as to effectuate the prohibition
E
of transfer of immovable property to any person other than a Scheduled
Tribe or a cooperative society composed solely of members of the F
Scheduled Tribes. Section 3 prohibits transfer of immovable property by
a member of the Scheduled Tribes to· a non-Scheduled Tribe. The burden
is on the non-tribal to prove that the land in his possession was not
acquired by transfer from a tribal; in other words, the land belongs to
tribal and the non-tribal possesses it in contravention of law. In case of G
any transfer made in contravention of sub-section (1) of Section 3, the
agent, the Agency Division Officer, or any other prescribed officer, may on
an application by any one interested, or on information given in writing by
a public servant or suo motu, issue decree of ejectment against any person
in possessi<m of the property claiming under the transfer. This should be
done after due notice to such person. Clause (b) of sub-section (2) of H
312
SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.
A Section 3 provides that if a transferer or his heirs are not willing to_ take
back the property or where whereabouts of the transferer are not known
the said officer may by order assign or sell the property to another member
of the Scheduled Tribe or a Co-operative Society. Sub-section 3(4) provides
that for the purpose of Section 3(4), the expression 'transfer' includes sale
B in execution of a decree and also a benami transfer made by a member of
a Scheduled Tribe in favour of any other member of the Scheduled Tribes
but does not includ.e a partition or a devolution by succession.
[369-F; 370-B-C; 372-A; D; 372-G-H:; 373-A·B]
7. It is settled law that the transfer of immovable property between
C a member of the Scheduled Tribe to a non-scheduled Tribe in the Agency
tracts is null and void. The non·tribals transferee acquires no right, title
and interest in that behalf in furtherance of such sale. [373-E)
Manchegowda & Ors. v. State of Kamataka & Ors., [1984) 3 SCC 301;
Lingappa Pochanna Appelwar v. State of Maharashtra & Anr., [1985) 1 SCC
D 479; P. Rami Reddy & Ors. v. State of Andhra Pradesh & Ors., [1988) 3 SCC
433 and Waman Rao v. Union of India, [1981) 2 SCR 1, relied on.
E
8. The Regulation was extended to Telangana region w.e.f. December
1, 1963. Prior thereto, law in Telangana area was in operation 11rohibiting
any transfer of agricultural lands without prior permission of the officers
and 1950 Regulation draws rebuttable presumption that all the acquisi·
tions of immovable property situated in Scheduled Areas ar1~ acquired
through a transfer from tribals. The non-tribals shall be presumed to have
acquired title from tribals unless they are able to prove to the rontrary
that their possession of properties in the Agency tracts was lawfully
F acquired. [375-A, B, CJ
9. Establishment of the egalitarian social order through rule of law
is the basic structure of t!1e Constitution. The Fundamental Rights and
the Directive Principles are the means, as two wheels of the chariot, to
G achieve the above object of democratic socialism. 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 ecanomic inequalities, to provide decent standard of
H living to the poor and to protect the interest of the weaker sections of the
SAMATHA v. STATE
313
society so as to assimilate all the sections of the society in a secular A
integrated socialist Bharat with dignity of person and equality of status to
;ill. [396-G-H; 397-A]
Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206;
D.S. Nakara & Ors. v. UOI, [1983] 2 SCR 165; Excel Wear Etc. v. Union of
India & Ors., [1979] 1 SCR 1009; State of Kamataka v. Shri Ranganatha B
Reddy &Anr. Etc., [1978] 1 SCR641; Sanjeev Coke Mfg. Company v.Bharat
Coking Coal Ltd. & Anr., [1983] 1 SCR 1000; State of Tamil Nadu Etc. Etc.
v. L. Abu Kayur Bai & Ors. Etc., [1984] 1 SCR 725; Madhusudan Singh &
Ors. v. Union of India & Ors., [1984] 2 SCC 381, referred to.
c
Prof. Friedlander, "Introduction of Social Welfare" page 6; B. Shiva
Rao, 'The Framing of India's Constitution: Selection Documents' Vol. IV p.
944; Dias, ''Jurispmdence" (5th Edn.) on 'distributive justice'; Justice P.B.
Sawant, "Socialism under the Indian Constitution"; Mahatma Gandhiji, the
father of the nation, Harijans' dated October 9, 1937; Dr. V.K.R.V. Rao, D
''Indian Socialism Retrospect and Prospect'~ pages 46-47; Mr. G.D.H. Cole,
"The Growth of Socialism" published in 'Law and Opinion in England in the
20th Century" (Morris Ginsberg, Editor) page 79-80, referred to.
10. The Constitution envisions to establish an egalitarian social order
rendering to every citizen, social, economic and political justice. Chapter· E
VI, Part X of the Constitution deals with "Scheduled Tribes and Tribal
Area". Article 244 provides that the provision of the Fifth Schedule shall
apply to the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the States of Assam, Maghalaya,
Tripura and Mizoram. The Fifth Schedule makes the provisions as to the F
administration and control of Scheduled Area and Scheduled Tribes.
[387-H; 388-A; 368-D-E]
11. Fifth Schedule would manifest the animation of the founding
fathers that lands in the Scheduled area covered by the Fifth Schedule
require to be preserved by prohibiting transfers between tribals and non- G
tribals and providing for allotment ofland to the members of the Scheduled
Tribes in such area and regulating the carrying on of the business by
money-lenders in such area. [368-B-C]
12. The predominant object of para 5(2) of the Fifth Schedule of the
Constitution and the Regulation is to impose total prohibition of transfer H
314
SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.
A of immovable property to any person other than a tribal for pc~ace and
proven good management of tribal area to protect possession, right, title
and interest of the members of the Scheduled Tribes held in th1: 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
B prior sanction of the Government and saved by any law made consistent
with the Fifth Schedule. With the passage of time, when person 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 prohibit transfer by a tribal to any other person and even
C 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 Scheduled area. Indisputably, any transfer
inter vivas between tribals or non-tribals or inter se between non-tribals
except testamentary disposition to a tribal, has been totally prohibited.
D 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
E
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. [375-D-H, 376-AJ
13. It is indisputable that apart from the patta lands or other lands
F held by the tribals, the State holds vast tracts of land in scheduled area,
in some areas with rich mineral deposits. Paragraph 5(2) of Fifth Schedule
enjoins the Governor to make regulations for the peace and good governance in a Scheduled 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
G and non-tribals in such area. Clause (b) regulates the allotment of land
only to members of the Scheduled Tribes in the area. The object of the
founding father of the Constitution in empowering the Governor, on the
basis of his personal satisfaction, is to regulate by law the administration
or control of the Scheduled area for peace and good governance of the
H scheduled Tribes in the area. [377-E; FJ
-
SAMATHA v. STATE
315
14. The Fifth and Sixth Schedules form an integral scheme of the A
Constitution with direction, philosophy and anxiety to protect the tribals
from exploitation and to pre~erve 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. [391,E; Fl
B. Shiva Rao, "In the Framing of the India's Constitution, Vol. II; Vol.
9 CA.D., p.p. 965-1001, referred to.
15. The purpose of the Fifth and Sixth Schedules to the Constitution
B
is to prevent exploitation of truthful inarticulate and innocent tribals and C
to empower them socially, educationally, economically and politically to
bring them into the mainstream of national life. The founding fathers of the
Constituti.on 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 opporD
tunities and facilities, by affirmative action, in the light of the Directive
Principles in 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 E
increasingly get allotted to them individually and collectively through
registered Cooperative Societies or agricultural/farming co-operative
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 or local body in a
planned development so as to make them fit for self- governance. The words
"piece and good government" used in the Fifth Schedule require widest
possible interpretation. [406-G-H; 407-A-D]
F
T.M. Kanniyan v. Income-tax Office1; Pondicheny & Anr., [1968] 2 G
SCR 103 and Queen v. Russell, [1882] 7 AC 829, referred to.
16. The object of Fifth and Sixth Schedules to the Constitution, 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 H
316
SUPREME COURT REPORTS [1997] SUPP. 2 S:C.R.
A and enjoyment of the lands in Scheduled areas for their economic empowerment, social status and dignity of their person. Equally exploitation of
mineral resources being national wealth undoubtedly, is for the development of the nation. The competing rights of tribals and the Sltate are
required to be adjusted without defeating rights of either. The Governor is
B 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 effed to the
constitutional mandate and legislative policy of total prohibition on the
C transfer of the land in Scheduled area to non-tribals. [420-E, F, G]
- D
17. 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 Scheduled Areas to the non-tribals for exploitation of mineral
resources, it transmits the correlative above constitutional duties and
obligation to those who undertake to exploit the natural resources should
also to improve social, economic and educational empowermf:nt of the
tribals. As a part of the administration of the project, the license•~ or lessee
E 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
F
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
G
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;
H
(t)
maintenance of sanitation;
>
r
SAMATHA v. STATE
317
(g) construction of houses for tribals in the Sciisduled Areas as A
enclosures; the expenditure for the above projects should be part
of his/its Annual Budget of the industry establishment or business advocation/venture. [421-C-H; 422-A-B]
18. In this behalf, at least 20 per cent of the net profit should be set B
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 reforestation 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 C
should ensure grant of such exemption and see that these activities are
undertaken, carried on and maintained systematically and continuously.
The above obligations and if uties, 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 em- D
powerment of the tribals could be achieved and peace and good governance
is achieved in Scheduled Areas. [ 422-C; D; E]
19. 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 E
245 is also subject to the Fifth Schedule, to regulate the allotment of the
Government land in the Scheduled Areas. Therefore, the State Legislature
of Andhra Pradesh has 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 comF
peting public purposes claim preferential policy decision, option to the
State should normally be to elongate and achieve constitutional goal.
Secondly, the constitutional priority yields place to private purpose,
though it is hedged by executive policy. As a facet of interpretation, the
Court too adopt purposive interpretation tool to effectuate the goals set
down in the Constitution. Equally, the executive Government iii its policy G
options requires to keep them in the backdrop and .regulate disposal of
their land-property in accordance with the constitutional policy, executive
decision backed by public policy and, at the same time, preserve
paramount Tribal interest in the scheduled area. No abstract principle
could be laid in that behalf. Each case requires examination in the back- H
318
SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.
A drop of the legislative/executive action, its effect on the constitutional
objectives and the consequential result yields therefrom. [401-E-H; 402-A)
20. It is true, that the Constitution has demarcated legislative,
executive and judicial powers and entrusted them to the three wings of the
B 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
C by the Constitution like the pleasure tenure or the power of pardoning a
convict are not apposite to the issue. The power of the executivt' 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
D 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
confer~ed 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 administrntion and
E 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 uon-obstante clause that "NotF withstanding anything in tile 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
G 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 Scheduh~. 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
H being a Scheduled Area. In particular and without prejudice to the
_,
SAMATHA v. STATE
319
generality of the foregoing power, such regulation may regulate the. allot· A
ment 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 B
as executive power. The word 'regulation' in para 5(2)(b) is thus of wide
import. [398-H; 399-A-H; 400-A; BJ
Marn Ram Etc. Etc. v. Union of India &Anr., [1981) 1SCR1196; Lois
P. Myers v. United States,. 272 US 160; 71 Led 11 and The State of Uttar
Pradesh & Ors. v. Babu Ram Upadhya, [1961) 2 SCR 679, referred to.
C
William H. Rehnquist "The Notion of a Living Constitution, 54 Texas
Law Review 693, referred to.
21. While interpreting Article 19(1)(g) of the Constitution, this Court D
has consistently held that the term 'regulation' would include total prohibi·
tion. Therefore, the word 'regulate" the allotment of land to members of
Scheduled Tribes in Scheduled area in the Fifth Schedule by Clause
5(2)(b) must 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 E
para 5, there is implied prohibition on the State's power of allotment of
its land to non-tribals in ~e Scheduled Areas. When so read there is no
incompatibility and inco istency between the power of the executive
Government and the Cons itution and conjoint operation would elongate
the good government of the Scheduled Areas. So, while prohibiting transfer F
of land between natural persons, 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 pubic purpose. The answer ob·
viously should be that it is permissible to the Gol'ernment to transfer its G
land to the non· tribals. This -negative answer leads to effectuate the
constitutional objective to preserve the land in the scheduled area to the
tribals, prohibits the Government from allotting 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 pur· H '
320
SUPREME COURT REPORTS [~997] SUPP. 2 S.C.R.
A posive interpretation would ensure distributive justice among tlile tribals
in this behalf and elongates the constitutional commitment. Any other
interpretation would sow the seed beds to disintegrate the tribal amtonomy,
their tribal culture and frustrate empowerment of them socially, economi·
cally and politically, to live a life of equality, dignity of person and equality
B of status. [ 400-C; G; H; 40l·A·D]
Narendra Kumar v. Union of llldia, [1960) 2 SCR 372; Fatehchand
Himmatlal v. State of Maharashtra, [1977) 2 SCC 670; State of U.P. & Ors.
v. Hindustan Aluminium Corpn. & Ors., [1979) '3 SCC 229; K Ramanathan
v. State of Tamil Nadu & Anr., [1985} 2 SCC 116 and Air India Statutory
C Corporation Etc. v. United Labour Union & Ors. Etc., (1996) 9 SCALE 70,
referred to.
22. The word 'person' in the interplay of juristic thought is either
natural or artificial. Natural persons are human beings while artificial
D persons are Corporations. Corporations are either Corporation agg_regate
or Corporation sole. The question whether or not the word 'pt:rson' 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
E statute, either expressly or by necessary implication, exempt the State from
the operation of the Act as against the State and would include "State
Government." [384-E; F, G]
23. The maxim "reddendo singula singulis" will apply to the' interpreta·
F tion of the word "person" so that the general meaning of the word "person"
in its generic sense with its width may 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 constitu·
tional mechanism and governance in a democratic set up. The State, by
G Cabinet form of Gover~ment, is a persona ficta, a Corporate sole Constitu·
tion empowers the State to acquire, hold and dispose of thdr 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 Regulation of the land be it between
H natural persons, i.e. tribals and non-tribals; it imposes total prohibition
SAMATHA v. STATE
321
. ~
on transfer of the land in scheduled area. The object of the Fifth Schedule A
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 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 constltu· B
tional objective 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) or para S
of the Fifth Schedule prohibits transfers inter vivas between tribals and
non-tribal natural persons and prevents money-lenders to exploit the
tribals.