15. Montague Chaonsford Report of 1918 suggested that the backward area where primitive (trible) live should be excluded from proposed political reform and administration was entrusted to the Governors of the Provinces.

16. Pursuant to Simon Commission Report, the Government of India Act, 1935 dealt with excluded and partially excluded areas as per Order 1936 issued under Section 91 of Government of India Act, 1935. Simon's Report is worth-extracting here and reads thus:

17. Therein also, "Scheduled Districts" defined in 1874 Act were treated as excluded and partially excluded areas. The administration thereof was exclusively vested in the Governor of the Province under Section 92 of Goverment of India Act, 1935 sub-sections (1) and (2) which are relevant for our purpose read as under:

18. The Government of India (Adoption of Indian Laws) Order, 1937 repealed 1874 Act and brought excluded and partially excluded areas directly under the governance of the Governor under, Section 92 of the Government of India Act, 1935. Thus they became the Scheduled Areas by virtue of the Scheduled Areas (Part 'A' States) Order, 1950 issued by the President of India. After the advent of the Constitution, Fifth and Sixth Schedules were engrafted as part of the scheme of the Constitution by the founding fathers. Fifth Schedule empowers the President of India who thereunder issued Scheduled Areas (Part 'A' States) Order, 1950 declaring specified areas therein to be Scheduled Areas within the States specified in Part 'A' of the First Schedule to the Constitution of India. Therein also East Godavari, West Godavari and Visakhapatnam Agencies (Vizianagram and Srikakulam Districts are part of it) were declared to be Scheduled Areas in Madras Province. Equally, by Scheduled Areas (Part 'B' States) Order, 1950 which became effective from December 7, 1950, the President exercised the power declaring certain specified areas as Scheduled Areas in Part 'B' States including the State of Hyderabad (Adilabad, Karimnagar, Nizamabad, Warangal, Khammam, Mehboob Nagar Districts).

19. It would, thus, be clear that 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 occupation and their autonomy, culture and ecology were preserved; infiltration of the non-tribals into 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 appointed by the Government in that behalf. However, with the connivance and fabrication of revenue records, non-tribals got hold of the lands and exploited the tribals.

20. Prof. Haimendrof has explained how notoriously the migrants swelled in number in the agency areas in Telangana of. Andhra Pradesh and dispossessed the tribals from their holdings with impunity and prevented them from enjoying right over their lands or unlawfully dispossessed them in collusion with the Patwaris, Deshmukh or Deshpandes, the lower level local officials. He has given the comparison of population at page 57 thus:

21. Narrating the event (after his revisit), he has stated at pages 59-60 thus:

22. This is only a tiny iceberg of several instances.He has highlighted the gross injustice done to the tribals. The book contains full details which need no recounting here to avoid needless burden.

23. Dr. G.P. Reddy at pages 66-67 of his book "Politics of Tribals Exploitation" has stated thus:

24. Writing about the non-tribals acquiring interest in the land in the tribal areas of Adilabad. Sethumadhava Rao has stated that:

25. Another Imodus operaridi for evicting the tribals who were cultivating the lands was by treating them as Sivaijamabandi, i.e., treating as unauthorised occupants. A cultivator who held land under Sivaijamabandi tenure is liable to eviction at any time. The tribals who were owners under the law were treated as unauthorised occupants by manipulation of revenue records. The tribals who could not understand the meaning of Patta rights could not be expected to understand the meaning of Sivaijamabandi. In many cases, though tribal had been cultivating the lands for several decades and generations, they were purposefully categorised as Sivaijanabandi, and were evicted. Their lands were assigned to non-tribals. It is ridiculous even to classify the lands held by tribals as Sivaijaniabandi just because these people lacked knowledge of the nature of their rights over their lands.

26. Traditionally, the tribals of the area acquired absolute right over the land for cultivation the day they started clearing new patches of forest. Prof. Haimendrof has narrated hundred of such cases where in the poor tribals had complained to him as to how they had lost their, lands because of wrong and false entries made in the land records by the Patwaris. Even till recently, the records were not maintained properly. This gave scope for the manipulation both by the Patwaris as well as by the petty revenue officials. This manipulation of records took place mainly due to corrupt practices.

27. Dubey's compilation gives first-hand account given by I.A.S. officers on the field representing Andhra Pradesh, Bihar, Gujarat, Maharashtra, represented then by K. Padmanabhaiah, the present Home Secretary, Govt. of India, Orissa, M.P. Rajasthan and West Bengal and they had given graphic first hand account of the magnitu de of the problems of land alienations, causes of exploitation. They pointed out urgent need for restoration of the lands to the tribals. Dr. G. Prakash Reddy from ICSSR surveyed the problems once again and has graphically explained it in his "Politics of Tribal Exploitation" [Mittal Publication]. "The Khonds and jaungs in Andhra Pradesh, Hand Book for Development" by Dr. Ramakant Nath, B.M. Boal and N. Soreng tells the plight of, and the need for restitution of the land to and rehabilitation of, Orissa tribes. The Reports of the Commissioner of SCs. And STs., 1980-81 and 1984-85 also emphasise the urgency of the problem. As in the year 1995, in Andhra Pradesh, the non- tribals are in possession of 7,51,435.66 acres in scheduled areas of A.P. State (Vide page 192 of Scheduled Tribes and Social Justice).

28. Like in Madras province, in Bihar, the Chota Nagpur Tenancy Act, 1908 prohibited transfer of lands by sale etc. except with the previous sanction of the Deputy Commissioner. The Bombay Province Land Revenue Code, 1879 also prohibited transfer of land from a tribal to a non-tribal without the permission of the District Collector. Similarly, the Chota Nagpur Tenancy Act, 1908, Santhal Pargana Tenancy (Supplementary Provisions) Act, 1959 and the Bihar Scheduled Areas Regulations, 1969 also prohibit the alienation of land of the tribals. These regulations also provide for restoration of alienated land to the tribals or when converted for urban use, to give them equivalent lands. As early as in 1901, in Gujarat, some measures of protection were provided (when it formed part of the Bombay Province) by amendment of Sections 73-A and 79-A in the Bombay Land Revenue Code, 1879, and imposed ban on transfer of land of tribes in those scheduled villages in which survey and settlement had not been introduced without previous permission of the Collector. The Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 and the Maharashtra (Restoration of Lands to Scheduled Tribes) Act, 1974 also prohibit alienation and ensure restoration of alienated lands to the tribes. Dr. B.L. Maharda, IAS, a bureaucrat of Rajasthan Cadre, in his "History and Culture of Giriasias" of State of Rajasthan, has narrated the similar problems of tribals.

29. The Regulation prohibits absolutely the transfer of land in scheduled areas of Andhra Pradesh between tribals and non-tribals inter se. In 1971, an amendment was made to exempt hypothecation of lands by tribes to the Co-operative Land Mortgage Banks and other financial institutions approved by the Government, subject to certain conditinons. In Assam, the Assam Land and Revenue Regulation Act, 1964 was enacted. In Himachal Pradesh, the H.P. Transfer of Land (Regulation) Act, 1968 was made. In Karnataka, the Bombay Tenancy and Agricultural Lands Act, 1948 was made applicable in Bombay region of the Karnataka State. The Mysore Land Revenue (Amendment) Rule, 1960 was suitable amended imposing restriction or alienation of the lands allotted to the Scheduled Tribes and Scheduled Castes without prior permission of the Government. In Kerala, the Kerala Land Reforms Act, 1963 contains similar provision. The Karala Scheduled Tribes (Restriction of Transfer of Land and Restoration of Alienation Lands), Act, 1975 was enacted for the same object which has recently been amended by a bill, details whereof are not available. Madhya Pradesh, the M.P.L.P. Code, 1959, under Sections 165(6) and 168(l), prohibits alienation of land and remedy of restoration thereof is provided. In Manipur, the Manipur Land Reforms and Land Revenue Act, 1970 was made similarly, the Orissa Scheduled Areas (Transfer of Immovable Property) Regulation and also Orissa Land Reforms Act, 1960 were made for the same purpose. The Rajasthan Tenancy Act, 1955, as amended in 1956 , prohibits such transfer of lands. In Sikkim, Sikkim Revenue Order, 1977 and Sikkim Agricultural Land Ceiling and Reforms Act, 1977 are enforced. Equally, the Madras Cultivitaing Tenants Protection Act, 1955 provides the same relief. In Tripura, Tripura Land Revenue and Land Reforms Act, 1960 imposes similar restrictions. In Uttar Pradesh, the U.P. Land Laws (Amendment) Act, 1982 was made though its implementation was stayed by the High Court.

30. The above bird's eye survey discloses the enormity of the yawning gap between making of the Acts and their Acts proper enforcement. The magnitude of the problem is of national importance which needs to be tackled and solved by Parliamentary law and effective enforcement.

31. As we have seen from the legislative history, from the begining of the British rule in India the Legislature has adopted the policy to exclude some areas totally and somepartially the governance through the Executive Council and given power to the Governor, of the Province and the Governor 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 scheduled areas. In either event the object was to prevent the tribals 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. Until the Simon Commission, the legislative protection was not available in that behalf. The Simon Commission found it necessary to bring the tribals to the main-stream of national life. In consequence, tribal area was to be brought under the direct administration of the elected governments by encouraging education, self-reliance and the provincial Government were to devote special attention for their upliftment. But the scheme was not given effect to in the Constitution of India Act, 1935. As is seen, Sections 91 and 92 of the Government of India Act and the Cabinet Mision Statement of May 16, 1946 emphasised the special attention on the tribal areas.

32. From this perspective, we are required to consider the debate in the Constituent Assembly and the draft statements by the two Committees, one for the North-east area now called Sixth Schedule and the rest of the areas covered under Fifth Schedule to the Constitution. The Draft Constitution on Fifth Schedule, presented by Dr. Ambedkar related to Draft Articles 215A and 215B making provision for administration and control of scheduled areas and Scheduled Tribes. Emphasise was laid therein on the creation of the Tribal Advisory Council to assist the Governor or the Ruler of each State having scheduled area therein, who are required to submit annual report to Government of India regarding the administration of scheduled area in that State, so that the executive power of the Union shall extend to that area to give directions to the State as to the administration of the said area. Draft Part II, clause 5 relates to law applicable to scheduled area and clause (a) of sub-clause (2) of Clause 5 postulated, prohibition or restriction on the transfer of land by or among members of the Scheduled Tribes in such area; clause (b) regulate the allotment of the land to members of the Scheduled Tribe in such area and ciause (c) regulate by person who lend money to members of the Scheduled Tribes in such area. Sub-clause (3) of Clause 5 gives power to the Governor or Ruler to amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. The draft report contained provision for allotment of the lands to the non-tribals. The report dated August 18, 1947 indicates that areas like the Madras and Orissa agency still need to be of simplified type which does not expose them to the complicated machinery of ordinary law course vide Shiv Rao's study. It is provided at pp.755-56 thus : As regards the allotment of new land for cultivation or residence, however, "we are of the view that the interest of the tribal need to be safeguarded in view of the increasing pressure on land everywhere. We have proceeded accordingly that the allotment of vacant land belonging to the State in scheduled area should not be made except in accordance with special regulation made by the Government on the advice of the Tribal Advisory Council". In the joint report on the partially excluded areas other than Assam and North-east frontier dated August 25, 1947 the above finds place. As per the minutes of the advisory committee dated December 7, 1947 it was felt that the amendment should be made after discussion in the Constituent Assembly. In the revision of Articles qua allotment of land to non-tribals was retained. However, after authorisation given by the Constituent Assembly to make necessary restructuring of the Fifth Schedule as explained by Dr. Ambedkar, the Draft was amended excluding all references to the allocation of land of tribals to the non-tribals with no amendment proposed by any member vide Vol. 9 C.A.D., pp. 965-1001.

33. It would, therefore, be seen that before the Draft Constitution became paramount law and the Fifth Schedule as its integral part, the members of the constituent Assembly deliberated to protect land, the precious asset to the tribals, for their economic empowerment, economic justice, social status and dignity of their person by retention of the land with the tribals not only belonging to them but also allotment of the Government land. The proposal for allotment of the Government land to the non-tribals though was initially proposed but was ultimately dropped. After re-structuring Fifth Schedule, as presently found, the specific provision in the draft report to allot land to no-tribals was omitted which was accepted by the members of the Constituent Assembly without any demur or discussion.

34. The draft Constitution 1948, clause (6) as originally proposed reads as under : "(i) aliention of allotment of land to non-tribals in Scheduled Areas, it shall not be lawful for a member of Scheduled Tribes to transfer any land in person who is not a member of the Scheduled Tribes; (ii) no land in scheduled area vested in the State within such area shall be alloted to person who is not a member of the Scheduled Tribes except in accordance with the rules made in that behalf by the Governor in consultation with the Tribal Advisory Council for the State." The text ultimately approved by the Constituent Assembly as part of the Constitution reads as under:

35. It would, therefore, be clear from the narration of the Debates in the Constituent Assembly that various drafts were placed before the Constituent Assembly. Suggestions and ultimate approval of the Fifth Schedule, as extracted hereinbefore, would mainfest the animation of the founding fathers that land in the scheduled area covered by the Fifth Schedule requires to be preserved by prohibiting transfers between tribals and non-tribals and providing for allotment of land to the members of the Scheduled tribes in such area and regulating the carying on of the business by money-landers in such area. Constitutional Scheme to protect the Tribes

36. Chapter VI, Part X of the Constitution deals with "Scheduled Tribes and Tribal Areas". Article 244 provides that the porvisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the State of Assam, Meghalaya, Tripura and Mizoram. The provision of Clause (2) of Article 244-A are not relevant for the purpose of this case; hence omitted. The Fifth Schedule makes the provisions as to the adminstration and control of Scheduled Area and Scheduled Tribes. Para (1) envisages that unless the context otherwise requires, the expression "State" defined in the Schedule does not include the State of Assam, Meghalaya, Tripura and Mizoram. Part V of the Schedule gets attracted to its admin- istration and control. Para (2) envisaged that subject to the provisions of the Schedule, the executive power of a State ex-tends to the Scheduled Areas enumerated therein. Special duty has been entrusted to the Governor to report to the President of the administration of scheduled area. It enjoins that the Governor of each State, having Scheduled Areas therein, shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said area. Para 5(2) provides that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Without prejudice to the above general power, special power has been conferred under clause (a) to prohibit or to restrict the transfer of land by or among members of the Scheduled Tribes in such area and under clause (b) to regulate the allotment of land to members of the Scheduled Tribes in such area; under clause (c) regulates money-lending to the tribals in the Scheduled Area.

37. In the Constitution, the expression 'Scheduled Areas' has been defined to mean such area as the President may by order declare to be Scheduled Areas. Clause (2) of para 6 provides that the President may at any time by order (a) direct that the whole or any specified part of a scheduled Area shall cease to be a scheduled Area or a part of such an area; (aa) increase the area of any Scheduled Area in a State, after consultation with the Governor of that State; (b) alter, but only by way of rectification of boundaries, any Scheduled Area; (c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area. Clause (d) deals with the rescission of any order under para 6. Such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of that paragraph shall not be varied by any subsequent order. Part D, para 7 empowers the Parliament to amend the Schedule by way of addition, variation or repeal of any of the provisions of the Fifth Schedule. Such a varied or modified Schedule shall be referred to such amended Schedule. The other details are not material for the purpose of this case. Hence they are omitted. Scope and Sweep of the Regulation 1970.

38. As has been stated, the Regulation came into force on March 4, 1959 in Andhra Pradesh area and in Telangana area with effect from December 1, 1963. the prior order in operation in Telangana area will be dealt with a little later. The material provisions relevant for the purpose are dealt with hereunder.

39. Section 2(a) defines 'Agency tracts' to mean the areas in the districts of East Godavari, West Godavari, Viskhapatnam, Srikakulam, Vizianagar, Adilabad, Nizamabad, 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. 'Scheduled Tribe' has been defined in Section 2(f) to mean any tribe or tribal community or part of or groups within any tribe or tribal community resident in the Agency tracts and specified as such by a public notification by the President under clause (1) of Article 342 of the Constitution. Section 2(g) defines 'transfer' to mean 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, sale, gift, exchange or other dealing. The definition of transfer is a comprehensively wide definition except testamentary disposition by a tribal to another tribal so as to effectuate the prohibition of transfer of immovable property to any person other than a Scheduled Tribe or a cooperative society composed solely of members of the Scheduled Tribes. Section 3(1) reads as under:

40. Section 3, therefore, prohibits transfer of immovable property by a member of the Scheduled Tribes to a non-Scheduled Tribe. Sub-section (1) (a) envisages, with a non obstante clause, that notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of 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 Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 and composed solely of members of the Scheduled Tribes. Clause (b) provides rule of evidence by way of presumption that until the contrary is proved, and immovable property situated in the Agency tracts and in the possession of a non-Scheduled Tribe, shall be presumed to have been acquired by such person or his predecessor in possession, through a transfer made to him by a member of a Scheduled Tribe (emphasis supplied). The burden would always be 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.

41. Clause (c) of Scetion 3 provides that if a non-scheduled tribe, though intending to sell, is unable to sell his land on account of either unwillingness of other tribal to purchase the land or the terms offered by him to a tribe, are inaccessible to a tribal, he may apply to the agent named or other prescribed officer who would acquire the land and take over possession of such land on payment of compensation in accordance with the principles laid down in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961, as amended in 1972. Such land shall thereupon vest in the State Government free from all encumbrances and shall be disposed of in favour of members of the Scheduled Tribes or a Co-operative Society composed solely of members of the Scheduled Tribes or in such other manner and subject to such conditions as may be prescribed.

42. In case of 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 possession of the property claiming under the transfer. This should be done after due notice to such person. clause (b) of sub-section (2) of Section 3 provides that if a transferer or his heirs are not wiling 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 Schedule Tribe or a Co-operative Society. Sub-section 3(4) provides that for the purpose of Sction 3(4), the expression 'transfer' includes sale in execution of a decree and also a benami transfer made by a member of a Scheduled Tribes in favour of any other member of hte Scheduled Tribes but does not include a partition or a devolution by succession.

43. Section 3-A makes special provision relating to mortgages without possession; the details thereof are not material. Section 4 provides for the remedy of suit to be institutied in the Agency Courts against the a member of the Scheduled Tribe; the details thereof are not material. Section 5 provides for attachment and sale of immovable property. Section 6 gives revisional power to the State Government. Section 6-A provides for penalties for contravention of the provisions of the Regulation. Section 7 prescribes limitation for purpose of initiating proceedings under the Regulation. Section 8 gives power to the State Government to make rules. Section 9 provides for repeal of repugnant provisions of the Madras Act 1 of 1917. Section 10 provides for saving of certain transfers and rights.

44. It is settled law that the transfer of immovabel property between a member of the Scheduled Tribe to a non-scheduled Tribe in the Agency tracts is null and void. The non-tribal transferes acquires no right, title and interest in that behalf in furtherance of such sale. This Court in Manchegowda & Ors. Vs. State of Karnataka & Ors. [(1984) 3 SCC 301] had declared such sales to be voidable. In Lingappa Pochanna Appelwar Vs. State of Maharashtra & Anr. [(1985) 1 SCC 479] this Court upheld the constitutionality of similar provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

45. When the constitutionality of Section 3 of the Regualtion was impugned as violative of Articles 19(1) (f) and 14 of the Constitution, this Court, in P. Rami Reddy & Ors. Vs. State of Andhra Pradesh & Ors. [(1988) 3 SCC 433] upheld its validity holdings that the Regulation aims to restore the lands to the tribals which originally belonged to them but passed into the hands of non-tribals. It would be unjust, unfair and highly unreasonable merely to freeze the situation, instead of reversing the injustice and restoring the status quo ante. The non-trtibal economic exploiters would get no immunity and not be accorded a privileged treatment by permitting them to transfer the lands and structures, if any, reaised on such lands to non-tribals and to make profits at the cost of the tribals. Section 3, though it causes hardship to the non- tribals, equally, alleviates hardship of the tribals. The Court must keep in mind the larger perspective of the interest of the tribal community in its entirety; the restrictions cannot be condemred as unreasonable. The presumption embodied in Section 3(1) (b) is a rule of evidence. The non-tribals could be resonably expected to disclose their title to the properties. The tribals due to hiandicaps and ignorance are unable to prove their right to land. The burden to prove title, therefore, was shifted to the non-tribals. The presumption was upheld as reasonable.

46. As a part of on-going industrial advancement, large industries or projects are bing set up or constructed in the scheduled areas displacing the tribals and rendering them improversihed landless labourers. When 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 dedication and direction to ameliorate the economic status of the tribes to assimilate them into national main-stream.

47. In Telangana area of athe State of Andhra Pradesh, prior to the Regulation and pursuant to Part B State Regualtion in Fifth Schedule, the AP Tribal Area Regualtion, III of 1359F promulgated by Raj Pramukh of Hyderabad was in vogue. Section 46 of the Agricultural Land and Tenancy Act, 1950 prohibits transfer of agricultural land without sanction of the competent authority. Section 3 of the Tribal Area Regulation excludes the application of any Act, Regulation or Rules by a notification published in the official Gazette. Seciton 4 gives power to the Government to make Rules. Sub-section (2) of Section 4 prohibits eviction of tribals from the lands in their possesion or occupied by them. Clause (f) prohibits grant of patta rights over any land in notified area to a non- tribal; the agent is empowered to cancel such transfer or revise any title of land granted to a non-tribal in any notified tribal area. Clause (g) prohibits sale in execution of a decree or whenever made, cancellation of sales not finally confirmed before coming into force of the regulation etc. As stated earlier, the Regulation was extended to Telangana region w.e.f. December 1, 1963. Prior thereto, law in Telangans area was in operation prohibiting any transfer of agricultural lands without prior permission of the officers and 1950 Regulation referred to earlier draws rebuttable presumption that all the acquisitions of immovable property situated Scheduled Areas are acquired through a transfer from triabls. The non-tribals shall be presumed to have acquired title from tribals unless they are able to prove to the contrary that their possession of properties in the Agency tracts was lawfully acquired. Scope of Fifth Schedule - Interplay with Regulation.

48. The predominant object of Para 5(2) of the Fifth Schedule of the Constitution and the Regulation is to impose total prohibition of transfer of immovable property to any person other than a tribal for peace and proven good management of tribal area; to protect possession, right, title and interest of the members of the Scheduled Tribes held in the 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 prior sanction of the Government and saved by any law made consistant with the Fifth Schedule. With the passage of time, when persons other than tribals gained unlawful title to and possession of the lands in agency tracts, their acquistion and holding of the immovable property, unless proved otherwise, have always been null and void. The Regulation, as its predecessor law, did prohibits transfer by a tribal to any other person and even 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 vivos between tribals or non-tribals or inter se between non-tribals except testamentary disposition to a tribal, has been totally prohibited. The only exception engrafted is the transfer to Co-operative Socities 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 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. The Andhra Pradesh High Court had held that the transfer of land in Scheduled Area by a tribal given to either a Scheduled Caste or a Backward Class settled in Agency tracts as void.

49. In P. Rama Reddy's case, this Court had observed thus: "Within the scheduled areas of both Telangana and Andhra regions the land was entirely in occupation of different tribal communities. The area was an inaccessible tract of land covered by forests and hills. These tribals communities were in occupation of lands and lived by shifting cultivation and gathering whatever produce that was available. The non-tribals who arrived in these areas late in the 19th Century in certain areas and the early 20th Century in certain other areas found the tribals who were in occupation of these lands an easy pray for the schemes of exploitation. The non-tribals were lending money to the tribal communities and taking the land belonging to them as security though nothing was taken in writing from a tribal. The rates of interests charged ranged between 25 to 50 per cent and in certain cases even 100 per cent. The tribals who were traditionally honest and who were simply in their thought and habits fell an easy prey to the schemes of the non-tribals. It was observed by several committees that the non-tribals were able to find ways and means to circumvent the provisions of Regulation 1 of 1959 by entering into benami transactions and other clandestine transactions with unsophisticated tribals. It is absouletly necessary to create conditions for peace and maintain peace and prevent the new non-tribals from settling down in the scheduled area. If the alienations are permitted to the non-tribals there is a danger of large-scale exploitation by the new non-tribals again with the result peace will be disturbed in that area. Unless new enterants into the scheduled areas are prevented from settling down in the scheduled areas by purchasing properties either from tribals or non-tribals, it is not possible to prevent the exploitation of the unsophisticated tribals. It is only with a view to enforce the valid provisions of Regulation I of 1959, the Regulation viz., Regulation I of 1970 was made. It is in the interests of the tribals and for their protection Regulation I of 1970 was passed, because without restricting or prohibiting the alienation of lands in the possession of non-tribals to non-tribals the objectives cannot be achieved. True, transfer by 'non-tribals' to non-tribals' would not diminish the pool. It would maintain status quo. But is it sufficient or fair enough to freeze the exploitative deprivation of the 'tribals' and thereby legalize and perpetuate the past-wrong instead of effacting the same. As a matter fo fact, it would be unjust, unfair and highly unreasonable merely to refreese the situation instead of reversing the injustice and restoring the status quo ante."

50. In this Constitutional perception and statutory operation, the crucial question that arises for consideration is: whether the transfer of its land in a scheduled area, by the Government is valid in law?

51. It is indisputable that apart from the patta lands or other lands held by the tribals, the State holds vast tracts of land in scheduled area, in some areas with rich mineral deposits. The questions are: whether the State Government is exempt from the Regulation?; whether the State Government stands above the law?; whether the meaning of the word "person" in Section 3(i)(a) of the Regulation would include the State Government? Article 244(1) read with the Fifth Schedule, Part I, defining "State" excepts certain States as enumerated therein. It bears repetition that 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 power. Clause (a) empowers him to prohibit or restrict the transfer, of land by or among members of the tribal; and non-tribals in such area. Clause (b) regulates the allotment of land only (added to emphasise) to members of the Scheduled Tribes in the area. The question, therefore, is: while regulating allotment of land under this clause, can the Government exclude itself from the power to allot land to a non-tribal when the object of Article 244(l) read with the Fifth Schedule is to control and maintain peace and good governance of the Scheduled area for the social and economic advancement of Scheduled Tribes? Would it be permissible to construe that the land belonging to the Government is outside such control or prohibition or restriction; whether the State Government could allot its land to non-tribals in violation of the Constitution and the law? Answer to these crucial questions bears paramount significance and impact since the object of the founding fathers 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 Scheduled Tribes in the area. The question is: whether any contra interpretation would subserve the Constitutional animation or would it frustrate the constitutional objective? The Division Bench of the High Court in Samatha's case relied upon the dictionary meaning of the word 'person' and the prohibition on transfer of land inter vivos between natural persons of Scheduled Tribes and non-tribes in Agency tracts; it came to conclude that the Regulation does not apply to the land owned by the State Government since the State Government is not a natural person. The earlier Division Bench had taken contra view. The question, therefore, is: which of the two views subserves the constitutional purpose and is correct in law? Meanings of the word 'Person' - whether Government is persona ficta?

52. From this perspective, the next question that arises is: whether the State Government is a person within the meaning of Section 3 of the Regulation and whether its transfer, of land to non-tribals or is valid in law?

53. The word person' in the interplay of juristic thought is either natural or artificial, Natural persons are human beings while artificial persons are Corporations. Corporations are either Corporation aggregate or Corporation sole. In "English Law" by Kenneth Smith and Denis Keenan [Seventh Edition] at page 127, it is stated that "[L]egal personality is not restricted to human beings. In fact various bodies and associations of persons can, by forming a corporation to carry out their functions, create an organisation with a range of human beings. In English law such corporations are formed either by charter, statute or registration under the Companies Acts; there is also the common law concept of the Corporation Sole" At page 163, it is further stated that "[T]he Crown is the executive head in the United Kingdom and Commonwealth, and government, departments and civil servants act on behalf of Crown". In "Salmond on Jurisprudence" by P.J. Fitzgerald [Twelfth Edition], at page 66, it is stated that "[A] legal person is any subject-matter other than a human being to which the law attribute personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination...". At page 72, it is further amplified that "[T]he King himself, however, is in law no mere mortal man. He has a double capacity, being not only a natural person, but a body politic, that is to say, a corporation sole. The visible wearer or the crown is merely the living representative and agent for the time being of this invisible and underlying persona ficta, in whom by law the powers and prerogatives of the Government of this realm are vested'. In 'Jurisprudence" by R.W.M. Dias (Fifth Edition), at page 265, it is stated that '... the value of personifying group activities is further reduced by the fact that, courts have evolved ways of dealing with such activities without resorting to the device of persona'.

54. In Madras Electric Corporation Vs. Boarland [(1955) 1 All ER 7531, relied upon by Shri Dhawan, it has been held that the word 'person' in its ordinry and natural sense includes Crown. The same view was reiterated in I.R. Commissioner Vs. Whiteworth Coal Co. Ltd. [(1968) 2 All ER 91 at 108). On the concept of "legal personality" and the concept of 'person", in "Elementary Principles of Jurisprudence" by Keeton [1949 Edition] relied on by Shri Rajeev Dhawan, in Chapter XIII at page 150, it is stated that in modern law, this personification by law is confined to certain definite limits, although this restriction is based, not upon principle, but upon convenience. In law, however, we are concerned with legal persons, whether they are natural, i.e., human beings capable of sustaining rights and duties, or artificial or juristic, i.e., groups or things to which the law attributes the capacity to bear rights and duties. Legal personality is itself nothing but a fiction, in so far as it is intended to imply no more than that a legal person is simply a complex of legal rights and duties. At page 151, it is stated that juristic person may be defined as those persons or groups of persons which the law deems capable of holding rights and duties, with a few exceptions. At page 152, he has amplified that corporation sole is a juristic person and it succinctly describes the position in modern English law. The conception of separate personality attaching to the successive occupants of a particular office is as valid juristically as the conception of incorporation of the members of a group. The Law of Property Act, 1925, Section 180 contents ilself with addition briefly, that a corporation sole may now hold personal property with rights and duties. At page 154, it is stated that principles applying to corporation aggregate are not fully applicable to corporation sole. "Court regarded the corporation sole not as a person, but as a device for the transmission of rights from one natural person to another". He quotes Blackstone : that "Corporation sole consists of one person only and his successors, in some particular station, who are incorporated by law, in order to give them legal capacities and advantages, in particular that of perpetuity, which in the natural persons could not have had. In this sense the King is a corporation sole,. At page 155, it is further stated that the law, there-fore, has wisely ordained, that the person, qua tenus person, shall never die, any more that the King; by making him and his successors a corporation sole. By which meant all the original rights of a personage are preserved entirely to the successors. At page 169, it is stated that the reason for King personality, a corporate sole, is that corporate personality is a techincal device, applied for a multitude of very divers each aggregations, institutions and transactions, whereas each of many theories has been conceived for particular type of juristic personality. None of them foresaw the extent to which the device of incorporation would be used in modern business, or we may add, to cloak the activities of some branch of Government.

55. Thus, in Great Britian, Crown has been regarded as a Corporation sole, persona ficta so that it has never been considered necessary to personify the State. The Crown in its political capacity represents the State in England and can sue in the English courts as a person. In Madras Electric Corporation case the same view was reiterated but when liability was sought to be imposed upon a person, it was held that the general principle of person, does not include the Crown, unless the statute is binding on the Crown, by express provision or by necessary implication. As held in I.R. Commissioner v. Whiteworth Coal Co. Ltd. [(1968) 2 All ER 91 at 108] in a taxing statute it was held that there was no objection to interpret the word 'person' to include the Crown in any provision other than those which seek to impose a burden.

56. In the American Jurisprudence 2nd Series, Vol. 72, page 407, it is stated that a State, in the ordinary sense of the Federal Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organised under a Government sanctioned and limited by a written constitution, and established by the consent of the governed. While the municipal corporation is organised under the authority of a state legislature and draws its public character from the law of the State creating it, it is endowed with a public character by virtue of having been invested by the legislature with subordinate legislative powers to administer local and internal affairs of the comniunity, as well as by having been created as a branch of the state government assist it in the civil government of the state. A public corporation, with capacity to sue and be sued, under modern statutory provisions, is a legal person. So also, for purposes of convenience, certain Departments of Government or the board of managers of a public institution are sometimes incorporated, but the corporations thus created, although public, are not Municipal Corporations. In Black's Law Dictionary, Sixth Edition., Page 675, the word "Government" has been defined thus:

57. In Edgar B. Sims. Vs. United States of America [359 US 108 : 3 L ed 2d 66], Federal Tax Authorities issued notices of levy of tax for assessment on unpaid income of employees of the State of West Virginia and had the notice served on the defendant. The State auditor, seized the accrued salaries of the taxpapers pursuant to Sections 6331 of the Internal Revenue Code of 1954. The defendant-State refused to honour the levy and instead, delivered payroll warrants to the taxpayers for their, then accrued salaries. Thereafter, the Government brought the action in the District Court for the Southern District of West Virginia to recover from defendant the amount of salaries he had so paid to the taxpayer in disobedience to the Governments levies. The District Court upheld the Government's order. The Court of Appeals, on appeal, affirmed it. On a writ of certiorari, it was held by the Supreme Court of USA that the levy of tax made under Section 6331 was authorised levy and that defendant under Section 6331 of the Interval Revenue Code of 1954 as 'person' was liable to pay the same.

58. In State of Ohio Vs. Guy T. Helvering [292 US 360 : 78 L ed 1307 at 1310] the question was whether "the State", when it was selling liquor through its agency and sources, "was a person" within the meaning of U.S.C. title 26, Section 205 [Section 3244, as amended]" It was held at page 1310 that the tax is levied upon every person who sells liquor etc. The word 'person' as use. in the title, should be broadly construed as mean and include a partnership, association, company or corporation, as well as a natural person. Whether the word 'person' or 'corporation' includes a State or the United States depends upon the connection in which the word is found. In South Corolina case, the United States Court disposed of the question by holding that since the State was not exempt from the tax, the statute reached the individual sellers who acted as dispensers for the State. While not rejecting that view, the Court preferred to place on the word 'person' the broader ground that when the State itself becomes a dealer in intoxicating liquors, it falls within the reach of the tax either as a 'person' under the statutory extension of that word to include a corporation, or as a 'person' without regard to such extension.

59. In State of Georgia Vs. Hiram W. Evans [316 US 159 : 86 L ed 1346] the same view was reiterated by the U.S.A. Supreme Court and it was held that if the word 'person' is to include a State as plaintiff, it must equally include a State as a defendant or else the language used would be meaningless.

60. In United States of America Vs. Cooper Corporation et al. [312 US 600 : 85 L ed 1071] relied on by Sri Sudhir Chandra, considering the word 'person' used Sections 7, 85 and 178 of the Sherman Anti Trust Act, it was held that although the term "person', as used in a statute, is not ordinarily construed to include the sovereign, this is not a hard and fast rule of exclusion, but may be negatived by resort to aids to construction indicating a contrary intent. On the facts, it was held that State was not a person. In tha context it was held that in the absence of any indication to the contrary, the term 'person', when used in different sections of a statute, was employed throughout the statute, in the same, and not different sense. But the said decision was reversed in State of Georgia, case. In United States Vs. I.C.C [(1949) 337 U.S. 426] it was held that when relief is sought against State itself, the word 'person' would include the State and be construed accordingly.

61. In Superintendent & Legal Remembrancer, State of West Bengal Vs. Corporation of Calcutta [(1967) 2 SCR 170] a Bench of nine Judges of this Court was to consider whether the State of West Bengal, when it was carrying on trade, as owner and occupier of the market at Calcutta, without obtaining the licence, was bound by the Calcutta Municipality Act or, by necessary implication, was exempted to obtain licence . A complaint against the State, for its failure to obtain licence was filed by the Municipal Corporation. It was contended that the State is not a person under Section 218 of the said Act. Per majority, it was held that the Common Law rule of construction that the Crown is not, unless expressly named or clearly intended, bound to be a State, was held to be not acceptable as a rule of construction. It was held that the archaic rule based on prerogative and protection of the Crown has no relevance to a democratic republic. It is inconsistent with the rule of law based on the doctrine of equality and introduces conflicts and anomalies. The normal construction, viz., that an enactment applies to citizens as well as to the State, unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the anomalies and is consistent with the philosophy of equaility enshrined in the Constitution. Under the Act there is a distinction between fine imposed under Section 537 and under Section 541 of the Act, the fines under Section 537 are in respect of offences enumerated therein they certainly go to the coffers of the States. In respect of such offences it may be contended that, as the firies paid reach the State itself. There is an implication that the State was not bound by the Sections enumerated therein, for a person who receives the fine, cannot be the same person who pays it. This incongruity may lead to the said necessary implication. Another Bench of nine Judges in State Trading Corporation of India Ltd. Vs. The Commercial Tax Officer & Ors. [AIR 1963 SC 1811 at 1817] per majority interpreted the word 'citizen' in a broader perspective. In Union of India Vs. Jubbi [AIR 1968 SC 360 at 362] a three-Judge Bench had held that a statute applies to State as much it does to a citizen, unless, it expressly by necessary implication, exempts the State from its operations. If the Legislature intended to exclude the applicability of the Act to the State, it could have easily stated in Section 11 itself or by a separate provision that the Act was not to be applied to the Union or to the lands held by it. In the absence of such a provision, in a constitutional set up like the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union. In that case it was contended that Abolition of Big Landed Estates and Land Reforms Act, 1953 and Section 11 thereof does not apply to the land held by the Government. This Court rejected that contention. It would, therefore, be settied law that the question whether or not the word 'person' used 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 statute, either expressly or, by necessary implication, exempts the State from the operation of the Act as against the State and would include "State Government". Property of the State - how dealt with under the Constitution.

62. Part I of the Constitution of India deals with Union and its territories. Article 1 declares that India, that is Bharat, shall be a Union of States. The States and the territories thereof have been specified in the First Schedule to the Constitution. The territory of India shall comprise of - (a) the territory of States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. Articles 2 to 4 deal with the power of the Parliament to admit into the Union, by law, any State, or establish new States on such terms and conditions as it thinks fit. Formation of the new States and alteration of areas, boundaries and names of the existing States are regulated by law made by Parliament. It also gives power to the Parliament to amend the First and the Fourth Schedules and to provide for supplemental, incidental and consequential matters. The First Schedule enumerates the States and the first in the alphabetical order is Andhra Pradesh with territories specified thereunder.

63. Under Part VI of the Constitution titled "The States", Article 152 defines "State". For the interpretation of the Constitution, by operation of Article 367, unless the context otherwise requires or modifies, the General Clauses Act shall apply. Section 3(23) thereof defines Government to include both the Central Government and State Government. Section 3(8) defines "Central Government" and Section 3(60) defines 'State Government' as regards anything done and or to be done, shall mean the Governor. The Governor of each State is its Executive Head and the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution as envisaged under Article 154. The executive power of the State, subject to the provisions of the Constitution , by operation of Section 162, shall extend to the matters with respect to which the Legislature of the State has power to make laws. The proviso thereto is not relevant for the purpose of this case.

64. The executive power, therefore, of the State is co-extensive with that of the legislative power of the State. The Governor shall appoint the Chief Minister and on his advise, he appoints the Council of Ministers, who shall aid and advise the Governor in the exercise of his function except, in so far, as he is, by or under the Constitution, required to exercise functions or any of them, in his discretion. The Council of Ministers, headed by the Chief Minister, shall be collectively and individually responsible to the Legislature and the people in the matter of the governance of the State. All executive actions of the Government of a State, shall be expressed to be taken in the name of the Governor and the business of the Government is conducted in accordance with Article 166 and the Business Rules made, by the Governor, by clause (3) thereof.

65. Under Chapter III of Part XII, Article 294 vests the union and the corresponding all property and assets which immediately before the commencement of the Constitution were vested in His Majesty for the purposes of the Government of, Dominion of Indiaor of each Governor's Province, whether arising out of any contract or otherwise, similarly all rights, liabilities and obligations, respectively of the Government of the Dominion of India and of the Government of each corresponding State, shall belong to the Government of India and the Government, of each corresponding State. Article 295 provides for succession to the property, assets, rights, liabilities and obligations in other, cases. Article 298 provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or, business, and to the acquisition, holding and disposal of property and the making of contracts for any purpose co- extensive with legislative power. The Union of India and each State under Article 300 may sue or be sued, with all rights and liabilities as a constituent power of the State under the Constitution. Article 299 empowers Union of India and the Government of each State to enter into contract, in the exercise of the executive power, to be expressed in topic name of the President or the Governor, as the case may be. All assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor, by such persons and in such manner as he may direct or otherwise. However, the President or, the Governor shall not be personally liable therefor. Article 300 is of material importance. As stated earlier, the Government of India or, a State may sue or be sued, by the name of the State and :subject to the provisions of the Constitution and the law enacted and by virtues of the power conferred by the Constitution, it can sue and be sued in relation to their respective affairs in the like cases.

66. The members of the Legislature, are elected by the people periodically at the end of every five year's. The political party or group of political parties who secure majority in the Legislative Assembly of the State elects the leader who would be called upon by the Governor to form the Government and on his appointment as the Chief Minister. On his advise, the Governor appoints his Council of Ministers who act in collective responsibility to aid and advise the Governor in the governance of the State during the tenure of their office. Permanent bureaucracy acts as an arm of the Government.

67. Articles 309 to 312A in Chapter I of Part XIV under the heading "Services under the Union and the States" regulate the recruitment and conditions of service and appointments to the public services and posts in connection with the affairs of the Union or the States, subject to the provisions of the Constitution and acts of the appropriate Legislature. Details thereof are not material for the purpose of this case suffice it to state that Constitution has created permanent bureaucracy consisting of diverse all India services allotted to various States and State Services created thereunder, to assist the political executive and to implement the provisions of the Constitution, the laws and the executive policy of the appropriate Government. Under the Constitution, in all ordinary matters of administration, the Ministers take full responsibility, subject to the control by the Legislature. The bureaucracy gives shape to the decisions taken by the Council of Ministers at the Cabinet meeting or by the individual Ministers by working out the details and they are applied in the given set of facts. In Halsbury's Laws of England (4^th Edn.] Vol.8 in paragraph 1152 at page 711 it is stated that the Government offices and departments through which the general executive administration of the country is carried on owe their, establishment and orgnisation, together with the powers they possess and duties they perform, partly to the royal prerogative and partly to the Parliament. They derive almost all their powers directly or indirectly from Parliament, which alone can provide them with the supplies of money, necessary for their, operations. Their internal arrangements, on the other hand, are hardly ever organised or directly interfered with by Parlament, but have been a matter for the royal prerogative. This principle proprio vigore applies to Cabinet form of functioning under our Constitution. In paragraphs 1155 at page 713, it is further stated that where functions entrusted to a Minister or to a department are performed by an official employed in the ministry or department there is in law no delegation because constitutionally the acts or decisions of the officials are that of the minister. In the exercise of their functions relating to land under any enactment, every minister and government department must have regard to the desirability of conserving the natural beauty and amenity of the countryside. Ministerial Responsibility.

68. As stated hereinbefore, the Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic. Article 261 [1] of the Constitution provides that full faith and credit shall be given, throughout the territory of India, to public acts, record and judicial decisions of the Union and of every State. In Secretary. Jaipur Development Authority v. Daulat Mal Jain [(1997) 1 SCC 35], a Bench of this Court had held thus:

69. In Shamsher Singh Vs. State of Punjab & Anr. [(1974) 2 SCC 831], a Bench of seven Judges of this Court had held that under the Cabinet System of Government as embodied our Constitution, the Governor is the formal head of the State. He exercises all his powers and functions conferred on him by or under the Constitution, on the aid and advice of Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his function in his discretion. The satisfaction of the Governor for the exercise of any power or function, required by the Constitution, is not the personal satisfaction of the Governor but is the satisfaction in the constitutional sense under the Cabinet System of Government. The executive is to act subject to the control of the legislature. The executive power of the State is vested in the Governor as head of the Executive. The real executive power is vested in the Ministers of the Cabinet. The Chief Minister and the Council of Ministers with the Chief Minister as its head aid and advise the Governor in the exercise of his executive functions. The same principle was reiterated by a Bench of three Judges in R.K. Jain Vs. Union of India [(1995) 4 SCC 119]. Therein, it was held that in a democracy governed by rule of law, State is treated on par with a person by Article 19 (6) in commercial/industrial activities.

70. It would thus be clear, that in a democratic polity governed by the rule of law, the administration is run through constitutional mechanism i.e., Cabinet form of Govt. by a Council of Ministers headed by the Chief Minister. They aid and advise the Governor, the executive head of the State. The bureaucracy - an arm of the political executive - assists as an integral part of administration mechanism. Their, actions or the acts, individually or collectively, are directed to elongate and fulfil the socio-economic goals set down in the Constitution to establish the egalitarian social order in which socio-economic justice is secured to the poor and weaker sections of the society including the Scheduled Castes and Scheduled Tribes, in particular, as enjoined in Article 46 of the Constitution, to promote their socio-economic interest and protect them from social injustice and all form of exploitation. The State is therefore, a "person" the constitutional mechanism persona ficta is enjoined to elongate the objects of the Constitution. Scope of the power of the Govt. in disposal of its proper in Scheduled area and constitutional duty and limitation of the State.

71. In "In the Framing of the India's Constitution", a study by B. Shiva Rao, (Volume II) in Chapter 20 on the Fifth Schedule of the Constitution on the Tribal Area, the author has surveyed the historical background for integration of Scheduled Tribes into the national maln stream. The historical survey and legislative development do assure us that throughout ... A system of modified exclusion of law was applied to the Scheduled areas. The power was with the Governor. He exercises the executive and legislative power to apply, or to refrain from applying any law made by Parliament or State Legislature to the Agency tracts. The object of Government policy is to protect the tribals or their land, . . . . by securing to them protection from exploitation. The principal duty of the administration is to protect them from exploitation. Considering the past experience and the exploitation of the tribals' simplicity and truthfulness by the non-tribals, it became imperative by statutory safeguards to preserve the land which is their natural endowment and mainstay for their economic empowernment. No laws affecting social matters, occupation of land including tenancy laws allotment of land and setting apart of land for village purposes and village management, in-cluding the establishment of Village Panchayats, would apply, unless they are suitable to the conditions. Shiva Rao has stated at page 579 thus:

72. Thus, the Fifth and Sixth Schedules an integral scheme of the Constitution with direction, philosophy and anxiety is to protect the tribals from exploitation and to preserve 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. Egalitarian Social Order - Scope and Content.

73. Justice is an attribute of human conduct. Law, as a social engineering, is to remedy existing imbalances, as a vehicle to establish an egalitarian social order in a Socialist Secular, Bharat Republic. The Upanishad says that, "let all be happy and healthy, let all be blessed with happiness and let none be unhappy". Bhagwatgeeta preaches through Yudhishtra that "I do not long for, kingdom, heaven or rebirth, but I wish to alleviate the sufferings of the unfortunate". Prof. Friedlander in his "Introduction of Social Welfare" at page 6 states that social welfare is the orginised system of social service and institutions are designed to aid individuals and groups to attain specified standard of life and health and personal and social relationship which permit them to develop their full capacities and to promote their well-being in harmony with the needs of their families and the community. Welfare State is a rubicon between unbridled individualism amd communism. All human rights are derived from the dignity of the person and his inherent worth. Fundamental Rights and Directive Principles of the Constitution have fused in them as fundamentaal human rights as indivisible and inter-dependent. The Constitution has charged the State to provide facilities and opportunities among the people and groups of people to remove social and economic inequality and to improve equality of status. Article 39 (b) enjoins the State to direct its policy towards securing distribution of the ownership and control of the material resources of the community as best to subserve the common good. The founding fathers with hind sight, engrafted with prognosis, not only inalienable human rights as part of the Constitution but also the State as its policy to remove obstacles, disabilities and charged inequalities for human development and positive actions to provide opportunities and facilities to develop human dignity and equality of status and of opportunity for social and economic democracy. Economic and social equality is a facet of liberty without which meaningful life would be hollow and mirage. Right to development - a fundamental right.

74. Declaration of "Right to Development Convention" adopted by the United Nations and ratified by India, by Article 1 "right to development" became part of an inalienable human right. By virtue thereof, every human person and all people are entitled to participate in, contribute to, and economic, social, cultural and political development, in which all human rights and enjoy