Andhra HC (Pre-Telangana)
Andhra Pradesh Tribal (Girijan) ... vs State Of A.P. And Others on 23 March, 2001
Equivalent citations: 2001(3)ALD189, 2001(3)ALT411, AIR 2001 ANDHRA PRADESH 306, (2001) 3 ANDHLD 189 (2001) 3 ANDH LT 411, (2001) 3 ANDH LT 411
Author: S.B. Sinha
Bench: Satya Brata Sinha
ORDER
S.B. Sinha, CJ
1. The advance sale notice dated 20-12-2000 issued by the Andhra Pradesh Forest Development Corporation calling for tenders from those who are desirous of purchasing green abnus leaves to be collected from the Government lands and purchased from the registered growers during 2001 beedi leaves season has been questioned by the petitioners herein in these petitions which are in the nature of pro bono publico as ultra vires of the A.P. Scheduled Areas Minor Forest Produce (Regulations of Trade) Regulations, 1979 (hereinafter referred to as "the 1979 Regulations") and the A.P. Scheduled Areas (Land Transfer) Regulations, 1959 (hereinafter referred to as "Land Transfer Regulations").
2. Abnus leave used for manufacturing of beedi or in common parlance known as 'beedi leaves' is a minor forest produce. The State Government of Andhra Pradesh enacted A.P. Minor Forest Produce (Regulation of Trade) Act, 1971 (hereinafter referred to as "1971 Act") to regulate the trade of certain minor forest produce by creation of a State monopoly in such trade in the State of Andhra Pradesh. Some provisions of the 1971 Act may be noticed:
"2(5): "Minor forest produce" means any forest produce other than timber, trees, (excluding bamboos) and charcoal, specified in the schedule;
3. Appointment of agents :--(1) The Government may, for the purposes of purchase of any trade in, any minor forest produce on their behalf appoint an agent for each unit :
Provided that nothing in this sub-section shall prevent the appointment of the same person as agent for more than one unit:
(2) The terms and conditions of, and the procedure for appointment of agents shall be, such as may be prescribed.
5. Restriction on purchase of transport of minor forest produce :--(1) Upon the issue of a notification under subsection (3) of Section 1 in respect of an area no person other than
(a) the Government, or
(b) an officer of the Government authorised in writing, by them in that behalf (hereafter in this Act referred to as the authorised officer), or
(c) an agent appointed for a unit; shall sell or purchase or cure or otherwise process or collect or store or transport any minor forest produce to which this Act applies.
Explanation :--Any sale to or purchase from the Government, the authorised officer or the agent of a minor forest produce shall not be deemed to be a sale or purchase in contravention of the provisions of this section.
(2) Notwithstanding anything in subsection (1):-
(a) a registered grower may collect any minor forest produce from any land belonging to him on which such produce in grown and may transport the minor forest produce so collected from such land to the nearest depot within the unit in which the said land is included; and
(b) minor forest produce purchased from the Government or from any authorised officer or agent by any person for manufacture of finished goods within the State using such produce or by any person for sale of such produce outside the Slate may be cured or otherwise processed or stored or transported by such person within or outside the unit in accordance with the, terms and conditions of a permit to be issued in that behalf by such authority and in such manner as may be prescribed.
Explanation :--For the purpose of this clause, the expression "transport by such person within or outside the unit" means the transport of minor forest produce at all stages including the transport to any subsidiary distribution centre situated at place of work or manufacture.
(3) Any person desiring to sell any minor forest produce may sell the produce to the Government or the authorised officer or agent in such form and in such manner as maybe prescribed.
(4) No grower shall carry on--
(a) any trade or business in,
(b) any industry with the use of, the minor forest produce to which this Act applies except in accordance with the provisions of this Act or the rules made thereunder".
3. In the agency areas 1979 Regulations are applicable. Some relevant provisions whereof are:
"2(a): 'agent' means the agent appointed under Section 3;
2(c) : 'Government' means the State Government;
2 (e): 'minor forest produce' means any forest produce other than timber, trees and charcoal, as may be notified by the Government in this behalf;
2(h): 'Scheduled Areas' mean the areas which have been or may be declared to be scheduled areas by the President under sub-paragraph (1) of paragraph 6 of the Fifth Schedule to the Constitution of India;
3. Appointment of Corporation as Agent:--(1) The Government may for the purposes of purchase of and trade in any minor forest produce on their behalf, appoint the Corporation as an agent for any scheduled area, (2) The terms and conditions of appointment and the manner of the purchase of, and trade in, any minor forest produce by the Corporation and the price at which such minor forest produce by the Corporation and the price at which such minor forest produce shall be purchased by the Corporation from growers shall be such as may be prescribed.
4. Restriction on purchase or transport of minor forest produce :--(1) Upon the issue of a notification under subsection (3) of Section 1 in respect of any scheduled area, no person other than the Corporation shall sell or purchase or cure or otherwise process or collect or store or transport any minor forest produce to which this regulation applies.
Explanation :--(1) Any sale to or purchase from the Corporation of a minor forest produce shall not be deemed to be a sale or purchase in contravention of the provisions of this section.
(2) Any person desiring to sell any minor forest produce may sell the produce to the Corporation in such form and in such manner as may be prescribed.
(3) No grower shall carry on,--
(a) any trade or business in,
(b) any industry in the case of, the minor, forest produce to which this regulation applies, except in accordance with the provisions of this regulation or the rules made thereunder.
6. Act of 1971 not to apply to the scheduled areas :--Nothing in the Andhra Pradesh minor Forest Produce (Regulation of Trade) Act, 1971, shall apply to minor forest produce in the scheduled areas in respect of which the provisions of this regulation apply.
10. Regulation to override, other laws, etc :--The provisions of this regulation shall have effect notwithstanding anything inconsistent therewith in any other law, custom, usage or agreement for the time being in force or any judgment, decree or order of a Court, Tribunal or other authority".
4. The question which has been primarily raised by Mr. P.V. Ramana, the learned Counsel appearing on behalf of the petitioners in Writ Petition No.32 of 2001, Mr. K. Manikyala Rao, the learned Counsel appearing on behalf of the petitioners in Writ Petition No.456 of 2001 and Mr. K Tulasi Reddy, the learned Counsel appearing on behalf of the petitioners in Writ Petition No.1254 of 2001 is that by reason of tatter Regulations made by the Governor in exercise of the powers conferred upon him and the Vth Schedule of the Constitution of India, the same shall prevail over the 1971 Act. The impugned sale notice, according to the learned Counsel, is invalid in relation to the schedule area as 1979 Regulations is a special law applicable in relation to an agency area. The learned Counsel would urge that having regard to the definition of "Corporation" contained in Regulation 2 of 1979 Regulations, the State had no power to issue the impugned notice. It was next contended that having regard to the provisions of 1959 Regulations, as the impugned auction notice includes pruning of the plant, the same being an immovable property the transfer thereof is prohibited under 1959 Regulations.
5. The relevant provisions of the 1959 Regulations are as follows:
"2 (a): 'Agency Tracts' means the areas in the district of East Godavari, West Godavari, Visakhapatnam, Srikakulam, Adilabad, Warangal, Khammam and Mahaboobnagar declared from time to time as Scheduled Areas by the President under sub-paragraph (1) of Paragraph 6 of the Fifth Schedule to the Constitution;
2(b): 'Agent' means the person designated by the State Government as an 'Agent to the Government' in the districts of East Godavari, West Godavari, Visakhapatnam, Srikakulam, Adilabad, Warangal, Khammam or Mahaboobnagar as the case may be;
2(d): 'Immovable property' includes standing crops, timber and trees, but does not include growing gross;
2(g): 'Transfer' means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property in respect of such mortgage, lease, gift, sale, exchange or other dealing.
6. Section 3 of the 1959 Regulations provides for the manner in which a member of the Scheduled Tribe can transfer the immovable property and it further provides that a transfer made to a person who does not belong to the Scheduled Tribe shall be null and void.
7. Regulation 6-A of the 1959 Regulations provides for penal clause.
8. The learned Advocate-General appearing on behalf of the respondents, on the other hand, would submit that the beedi leaves is a major source of industry. They are found in the tribal areas. The learned Advocate-General contends that having regard to the provisions of the 1971 Act, 1979 Regulations will have no application as no notification had been issued in relation to the beedi leaves.
9. As regards the applicability of 1959 Regulations, the learned Advocate-General would contend that there exists no element of transaction having been contemplated in terms of the auction notice, and thus the same does not violate 1959 Regulations. Our attention has been drawn to the statements made in the additional counter-affidavit filed by the 2nd respondent herein.
"(ii) It is submitted that during (he collection of beedi leaves, the tribals collect the leaves from the forests and bring to the collection centre called "Khalla" and they will be paid cash for the leaf purchased from them The collection centres (Khallas) act as a marketing source facilitating the tribal to get fair price for the forest produce. The Departmental collection of beedi leaf/ abnus leaf was introduced with a view to ensure disbursement of fair price to the beedi leaf collected from the tribals. During the collection period ranging from 20 days to 45 days an amount of Rs.30 crores is disbursed as collection charges and most of the amount gets distributed to the local tribals. The A.P. Forest Department and the A.P. Forest Development Corporation are giving institutional support for marketing the beedi leaf. The net profits derived are also being ploughed back to the tribals in the shape of their share in the profits and deposited with the respective Vana Samrakshana Samithies".
10. It is not in dispute that the 1971 Act is applicable to the entire Slate of Andhra Pradesh. However, the 1979 Regulations would have overriding effect on the 1971 Act in relation to its operation in the agency area.
11. However, having regard to the definition of minor forest produce, the same must be notified by the Government in this behalf. From a perusal of the notification issued it does not appear that the same comes within the purview of the 1979 Regulations. The State, consciously, left out the transaction of beedi leaves from the purview of its operation under 1979 Regulations.
12. There cannot be any doubt whatsoever that the 1979 Regulations is a special legislation and shall prevail over the 1971 Act but it would exclude the operation of the 1971 Act only in relation to certain notified minor forest produce and not in relation to all. In Samatha v. State of A.P., , whereupon strong reliance has been placed by the learned Counsel cannot be said to have any application whatsoever in the instant case. It is true that sale of forest produce even by a State Government is prohibited. We in this connection that the Apex Court in Samatha's case has held that transfer of Government land is also impermissible under the Regulations. It was further held that in the context of the said Regulations, regulation would include prohibition. It was held;
"113. In the absence of any total prohibition, undoubtedly Article 298 empowers the Governor being the head of the Executive to sanction transfer of its lands. Since the Executive is enjoined to protect social, economic and educational interest of the tribals and when the State leases out the lands in the Scheduled Areas to the non-tribals for exploitation of mineral resources, it transmits the correlative above constitutional duties and obligation to those who undertake to exploit the natural resources should also to improve social, economic and educational empowerment of the tribals. As a part of the administration of the project, the licensee or lessee should incur the expenditure for:
(a) re-forestation and maintenance of ecology in the Scheduled Areas;
(b) maintenance of roads and communication facilities in the Scheduled Areas where operation of the industry has the impact;
(c) supply of potable water to the tribals;
(d) establishment of schools for imparting free education at primary and secondary level and providing vocational training to the tribals to enable them to be qualified, competent and confident in pursuit of employment;.
(e) providing employment to the tribals according to their qualifications in their establishment/factory;
(f) establishment of hospitals and camps for providing free medical-aid and treatment to the tribals in the Scheduled Areas;
(g) maintenance of sanitation;
(h) construction of houses for tribals in the Scheduled Areas as enclosures; The expenditure for the above projects should be part of his/its @ page -SC 3344 Annual Budget of the industry establishment or business avocation/ venture".
13. Paragraph 5(2) of the Vth Schedule of the Constitution of India empowers the Governor of the State to make regulations for the peace and good governance of an area in a State which is for the time being a scheduled area. Such regulations made may (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; (c) regulate the carrying on of business as moneylender by persons who lend money to members of the Scheduled Tribes in such area.
14. 1959 Regulations are made to regulate the transfer of land in the scheduled areas of East Godavari, West Godavari, Visakhapatnam, Sirkakulam, Adilabad, Warangat, Khammam and Mahaboobnagar districts of Andhra Pradesh with an intention of protecting the landed properties owned and possessed by the members of the scheduled tribes. However, such regulations had not been made for protecting the culture of the Scheduled Tribes.
15. The moot question which arises for consideration would be whether the beedi leaves from standing trees in the scheduled areas would also come within the purview of the definition of 'immovable property'. It is not in dispute that if beedi leaves, in the State when they are sold come within the purview of transfer, it will be hit by 1959 Regulations. It is not in dispute that the State has made rules under the 1971 Act which provide for the mode and manner of transaction in relation to beedi leaves.
16. The only question which now arises for consideration is as to withdraw the 1959 Regulations will have any application in the instant case. "Immovable property" has been defined in the said Regulations to include standing crops, timber and tress but does not include growing grass. Transfer has been defined to mean mortgage, with or without possession, lease, sale, gift, such or any other dealing with immovable property.
17. Regulation 3 of the 1959 Regulations prohibits a transfer of immovable property by a member of Scheduled Tribe in the following terms:
"3. Transfer of immovable property by a member of a Scheduled Tribe :--(1) (a) Notwithstanding anything in any enactment, rule or law in force in the Agency tracts, any transfer or immovable property situated in the Agency tracts by a person whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of the Scheduled Tribes".
18. With a view to consider the aforementioned questions the relevant provisions of the advance sale notice dated 20-12-2000 may be considered.
" Sealed tenders are invited from persons or parties registered as manufacturers of beedi or exporters of abnus leaves as required by the Andhra Pradesh Minor Forest Produce (Regulation of Trade) Act, 1971 and the Andhra Pradesh Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, 1970 as modified from time to time, and those desirous of purchasing green abnus leaves to be collected from Government lands and purchased from registered growers during 2001 beedi leaves season.
9. Sale value of Beedi leaf to be tendered:--The tenderer shall quote/offer the purchase rate per standard bag excluding collection charges at which he desires to purchase the entire beedi leaf to be collected by department and subsequently cured, bagged and transported to the godown by the purchaser. The rate per standard bag offered should be both in figures and words. The collection charges paid by the department will be reimbursed by the purchaser separate.
14. Delivery of the tenders :--(a) Tenders complete in all respect shall be put in a closed and sealed envelope as prescribed above and may be presented or sent by registered post to the VC & MD, APFDC, C/o Conservator of Forests, State Trading Circle, Aranya Bhavan, Saifabad, Hyderabad 500 004 so as to reach him by 5.00 p.m. (1700 hours) on 3-1-2001.
17. Opening of Tenders :--Tenders will be opened at the Decent Function Palace, Mehdipatnam, Hyderabad by the Conservator of Forests concerned or his Authorised Officer in the presence of the Vice-Chairman and Managing Director, Andhra Pradesh Forest Development Corporation Ltd., Hyderabad, or his authorised officer and the tenderers who choose to be present at the time of opening of the tenders may present by themselves. The opening of tenders will be done in the serial order given in the schedule or as notified, on 4-1-2001, commencing from 10.00 a.m., onwards and on subsequent days if necessary. After opening of all the tenders, the time of announcement of results will be informed at the venue itself.
29. Transfer of Agreement :--(a) The purchaser shall not assign and/or transfer the contract to any other person or party without the specific orders of the Divisional Forest Officer (DFO) concerned who at his discretion may permit such assignment or transfer on payment of a fee as follows:
(i) for the first transfer @ Rs.1/- per standard bag.
(ii) For the second transfer @ Rs.2/- per standard bag.
(iii) For the third and subsequent transfers @ Rs.5/- per standard bag.
(b) In case of transfer of a unit from one purchaser to another purchaser, the transferee purchaser shall have to enter into fresh agreement with the Divisional Forest Officer concerned, and in case if the material is already collected/transported, it shall also be binding on the second purchaser to accept the entire quantity of leaf on 'as is where is' basis.
30. Pruning of Abnm Plants :--The purchaser shall do pruning of abnus plants in the unit. He shall do so after obtaining prior permission of the Divisional Forest Officer concerned in writing and in such manner and during such period as may be directed by him from time to time. Lopping and cutting of branches of trees or damaging trees in any other way is strictly forbidden.
31. Kindling of Fire in Forest Area prohibited :--(a) Kindling of fire in the forests within the unit area and in its vicinity including smoking and carrying match boxes is strictly forbidden during the fire season.
(b) It shall be the responsibility of the purchaser to prevent fire in the unit.
32. Collection of abnus (beedi) leaves :--(a) The purchaser shall have to make his own arrangements entirely at his cost for establishment of centers for collection of abnus leaves (Khallas), employment of khalledars, staff and labourers, transport and storage of material and other arrangements necessary for carrying out the contract. The list of collection centres (Khallas) notified from time to time can be had from the office of the Divisional Forest Officer concerned.
(b) If the purchaser desires to open any additional collection centre (Khalla) within the area of the said unit, then a representation should be made to the Divisional Forest Officer concerned, and the Divisional Forest Officer concerned after examining the issue will have discretion to accept or reject the same.
(c) The purchaser shall keep his representative (Khalledar) at each collection center (Khalla) during the collection season for collection of the abnus leaves at such centers, preferably from same village. Names of such representatives shall be furnished to the Divisional Forest Officer concerned along with their specimen signatures duly attested by the purchaser before the starting of pruning. The purchaser will be responsible for any act of commission /omission of such khalledar. The Divisional Forest Officer concerned will have the discretion to reject any representative proposed by the purchaser without giving any reason therefor.
If any representative is rejected by the Divisional Forest Officer, the Purchaser shall provide a substitute representative acceptable to the Divisional Forest Officer concerned. In case the purchasers fails to appoint a khalledar or position a khalledar the Department will appoint and position the khalledar and the purchaser will be responsible for any act of commission/omission of such khalledar appointed/position by the Department.
(d) Only local tribals should be appointed as khalledar by the purchaser. In the absence of local tribals, local SC/BC should be given preference.
(e) The purchaser shall accept abnus leaves at the notified collection centers only. Without prejudice to any other rights, remedies or powers of the Government under the agreement and/or any law, any abnus leaves collected at unauthorised collection center (s) shall be forfeited to the Government and disposed off in the manner deemed fit.
(f) The purchaser shall accept from the concerned unit, the abnus leaves in raw form (green condition), in the form of bundles containing 50 leaves each, provided, however, bundle should not contain more than 55 leaves.
(g) The purchaser shall not reject abnus leaves collected for further processing at khallas unless the leaves are unfit for beedi manufacture. The leaves rejected, if any, by the purchaser shall be kept separately for the inspection of the Forest Range Officer concerned or any officer authorised by him. On the decision of such officer, an appeal shall lie with the Divisional Forest Officer, whose decision shall be final and shall be binding on the purchaser.
(h) Once the leaf collected at the khalla is entered in Form I-A and/or 1-B, the custody of leaf is deemed to have been handed over to the purchaser for the purpose of curing, bagging, transportation and storage at godown etc. The leaf collected shall be entered in 1-A and or l-B within (24) hours of collection.
(i) The purchaser shall reimburse collection charges to the Department/ Corporation as per the beedi leaves collection recorded in Form 1-A and/or 1-B at the collection center of the unit. The collection charges shall be recovered on due dates, irrespective of the fact whether the material is cured, transported or lost due to natural calamities or damaged due to acts of third party.
(j) The purchaser shall be responsible for all the operations like khalla site (selection/clearance/rent etc.), curing, bagging, transportation and storage at godowns, watch and ward.
(k) It shall be the responsibility of the purchaser to make required arrangements and payments for all the operations (other than collection charges) like pruning, khalla site arrangements, curing, bagging, transportation, storage at godown, watch and ward, etc., salaries and remuneration's of khalledars, supervisors and other employees engaged by the purchaser".
19. The principal contention which has been raised by Mr. Ramana is that pruning of abnus plants will come within the purview of the word "otherwise dealing in the properly" contained in the definition clause of Section 2(g).
20. It is now a well settled principle of law that the interpretation clause cannot be read as a positive enactment.
21. It is true that whenever a meaning of a word is definite, such meaning has to be attributed to all the other provisions unless the context otherwise requires.
The context of the interpretation clause must be considered having regard to the purpose and object sought to be achieved under the statutory scheme.
There cannot be any doubt whatsoever that Section 3 must be construed liberally.
22. By reason of sub-clause (i)(a) of Regulation 3, all transfer of immovable property is null and void unless the same is made in favour of a person who is a member of the Scheduled Tribe or a society registered or deemed to be registered under the A.P. Co-operative Societies Act. The definition of immovable property is also an expanded definition as it includes standing crops, timber and trees.
23. The trees belong to the Government. It is true that the bar under Regulation 3 also applies to the Government lands. But the question posed in these writ petitions must be considered from a wider perspective in the sense that it has categorically been stated by the Government in its counter-affidavit that the entire exercise is being done for the benefit of the-members of the Scheduled Tribes. The transaction in question thus is required to be made having regard to the nature and scope thereof.
24. Having regard to the precautions taken in the entire operation, pruning of the trees which are for the benefit of the members of the Scheduled Tribes, in our considered opinion, would not amount to transfer of the property.
25. We may notice that the lopping and cutting of plants is strictly forbidden. Once clause (30) of the impugned advance sale notice is adhered to strictly, the apprehension of the petitioners to the effect that by taking recourse to the pruning, the contractors would lop or cut the branches of the trees or collect the beedi leaves themselves cannot be accepted. If outsiders carry on any such activity, the petitioners or any other members of the Scheduled Tribe who have got a role to play in the matter can bring the same to the notice of the authorities concerned. There cannot be any doubt whatsoever that a strict view of the matter shall be taken by them.
26. We, therefore, having regard to the scheme of the entire operation, are of the opinion that pruning of trees by itself would not amount to transfer of an immovable property and we may also observe that leaves in a tree are part of the immovable property, but when they fall down, it would cease to be immovable property. As the tenderer has nothing to do with the plucking of the leaves from the tree, the restrictions laid down in the said Regulations do not come into play.
27. These writ petitions are disposed of with the above mentioned observations.
We, however, would direct the respondents to keep a strict vigil that no transfer of immovable properly takes place under the garb of carrying out the terms of the contract aforementioned.
For the views we have taken it is not necessary to refer to the decisions cited at the Bar. All interim orders are vacated. There shall be no order as to costs.