|CITATION||(1997) 8 SCC 191|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice K. Ramaswamy, Justice S. Saghir Ahmad and Justice G.B. Patnaik|
|DATE OF JUDGEMENT||11.07.1997|
Mostly land invasions take place in the name of development. The tribal lands are protected and secured within the tribal communities. The scheduled lands are rich in flora, fauna and minerals deposits which are often exploited by the multinational companies. The mineral deposits are looted to increase their net profits and not for development of land, welfare of tribal societies etc. This judgment is important for the very reason that it has favoured the tribal communities and has protected lands in the scheduled areas from illegal mining. Like every other community, the tribal also have the right to live their life in traditional means without any outside interference.
The facts of the case are as follows: Samatha is a voluntary social organization that is working in Andhra Pradesh. It works for the development of tribal groups in the Scheduled areas of the State. The case was against the Government of Andhra Pradesh for leasing out tribal lands to private mining companies in the Scheduled areas of Vishakhapatnam. They argued that the ‘government’ was also a person and that it does not have the power to lease scheduled land to non tribals for mining purposes. But the High Court ruled in favor of the state of Andhra Pradesh. Appellants filed a special leave petition in the Supreme Court and held that the state violated Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, Forest (Conservation) Act, 1980 and Environment Protection Act, 1986.
The main issues in the case were:
- Whether the Government has the power to transfer a land in the scheduled area to a non-tribal?
- Whether the Government has the power to grant mining lease to a non-tribal? And
- Whether the mining lease for a period of 20 years violative of the Environment Protection Act, 1986?
Summary of court decision and judgment
The Honorable Supreme Court has reversed the judgment given by the High Court and held that the grant of mining lease is in violation of Andhra Pradesh Schedule Area Land Transfer Regulation, 1959. The Court also felt that it would be appropriate to constitute a session of chief ministers and concerned union ministers to take a policy decision so as to bring about a suitable enactment for a consistent scheme throughout the country to protect the tribal lands and to prevent exploitation of mineral wealth especially before granting a lease. The State Government was directed to stop all the industries from mining operations and ruled that the State government should not decide without the concurrence of the Central government. The judgment also noted that at least 20 per cent of the net profits should be set apart as a permanent fund for the establishment and provision of basic facilities in the areas of health, education, roads and other public amenities towards the welfare of the tribals. As per the verdict all lands leased by the government or its agencies to private mining companies are null and void. This was a landmark verdict given in the favor of the tribal communities.
The Court observed that it is an admitted fact that Ananthagiri Mandal is a scheduled area and is inhabited by tribal population. The area is rich in flora and fauna and has rich mineral deposits and is protected national asset. It is a known fact that agriculture is sole means of income for the tribal communities. Under Article 21 of the Constitution, right to livelihood is a fundamental right. Land is their most vital 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. Thus it is a security and source for economic empowerment for such rural communities. Therefore, the tribes too have great emotional attachment to their lands.
Further the Court analyzed the term ‘person’ under section 3 of the Regulation and whether the transfer of land for mining to a non-tribal private entity valid as per law? It is an undisputed fact that person can be both natural (human beings) and artificial (Corporations). The Honorable Court in Superintendent & Legal Remembrance, State of West Bengal v Corporation Calcutta and in Union of India v Jubbi has held that a statute or an enactment applies to all citizens as well as the State unless expressly or impliedly exempts the State from its operation. If the Legislature intended to exclude State from a particular Act, it would have expressly mentioned that.
The Honorable Court considered the question that whether granting lease to a non-tribal private entity can be said as violative of the Environment Protection Act, 1986? It is important to note that this particular Act was enacted by the Legislature to protect the environment from illegal encroachments. Large scale mining activities will destroy and pollute the land. The Government has an obligation to protect the land which is the sole means of livelihood to almost 60% of India’s rural communities. Article 21 of the Constitution is broad enough and has included the right to a clean and safe environment, right to livelihood under right to life. Thus the Government has the duty to abide by the provisions of the Environment Act. Any lease granted to a public entity who is a not a tribal clearly violates the Act. Further, the Court noted that mining activities pollutes the tribal atmosphere, it will destroy the flora and fauna and hence such activities must not be permitted.
The Court observed that as per the Fifth Schedule of the Constitution, Government has no right to grant mining lease in a scheduled area to a non- tribal private organization. It can only be done by the Andhra Pradesh State Mineral Development Corporation or a Cooperative of tribals. This can be permitted if they are in harmony with the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. The Fifth Schedule of the Constitution is enacted with the objective of protecting the tribal lands. There are chances that people may lure the uneducated tribals for money or other material goods that is why the Parliament has expressly prohibited the transfer of properties to private parties. Transfer of land in a Scheduled Area by way of lease, for mining purpose in favor of non-tribals stands prohibited by para 5(2)(b) of the Fifth Schedule read with Section 3 of the Regulation.
Even after the judgment was given by the Supreme Court, the Government did not work towards protecting the lands of the tribal communities. It has not only disobeyed the instructions given by the Court, rather it has also neglected the welfare of the tribal communities. The main idea behind the Fifth schedule is that tribal lands should not be transferred, since that can only be preserved by them. If the mining lease is granted to a cooperative of tribals, they will regulate and control the mining activities in such a way that it does not cause harm to the land. Thus, there will be lesser chances of environmental degradation and invasion. The judgment was against private industries whose ultimate motive is to earn profit by misusing the land to satisfy their whims and fancies. It is these influential groups who are still pressurizing the governments to compromise its rules and regulations thereby wanting it to grant mining leases to private industries.
 AIR 1997 SC 3297.
 Waman Rao v. Union of India,  2 SCR 1.
  2 SCR 170.
 AIR (1968) SC 360.