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1969 DIGILAW 298 (KER)

EACHARAN ITTIATHI v. STATE OF KERALA

1969-12-22

P.UNNIKRISHNA KURUP, T.C.RAGHAVAN

body1969
Judgment :- 1. The petitioner, a Mala Arayan, a member of a Scheduled Tribe (a hill tribe), prays for a writ of certiorari or any other appropriate writ, direction or order striking down the Kerala Hillmen Rules, 1964 framed for the protection, advancement, treatment and management of hill tribes under S.76 (a) of the Kerala Forest Act and also directing the Government and the officers of the Forest Department to forbear from acting on these rules. The main contention of the petitioner, who is a member of a registered society called Vanavarga Maha Sabha, is that the said rules are beyond the competence of the State Legislature and the State Government as the rules deal with a subject which is not included either in the State List or in the Concurrent List of Schedule VII of the Constitution. He also contends that the subject falls within the Fifth Schedule of the Constitution. 2. Art.244 of the Constitution provides that the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and the Scheduled Tribes in any State other than the State of Assam. Then there are Articles like 338 providing for the appointment of a Special Officer for the Scheduled Castes and the Scheduled Tribes and 339 giving power to the President for appointing a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States. Art.342 (1) provides that the President may, with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of, or groups within, tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. Clause (2) of Art.342 gives power to the Parliament to include in, or exclude from, the list of Scheduled Tribes specified in the notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community. These provisions of the Constitution make it abundantly clear that legislation regarding the welfare, protection, advancement, etc of Scheduled Tribes is specially provided for and power is vested in the President and in the Parliament to deal with those matters. 3. These provisions of the Constitution make it abundantly clear that legislation regarding the welfare, protection, advancement, etc of Scheduled Tribes is specially provided for and power is vested in the President and in the Parliament to deal with those matters. 3. The affidavit of the petitioner alleges that he is a Mala Arayan, a member of a Scheduled Tribe; and the counter affidavit filed on behalf of the State does not dispute this. The petitioner further alleges that he is a member of Vanavarga Maha Sabha, a registered society. The President of India, taking power under Art.342(1) of the Constitution, promulgated the Constitution (Scheduled Tribes) Order of 1950, wherein Mala Arayan is included in Part XIV relating to Travancore-Cochin as a Scheduled Tribe throughout the State. In 1956, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act was passed by the parliament and therein also Mala Arayan is listed as a Scheduled Tribe throughout the State of Travancore-Cochin. Therefore, it cannot be disputed that the petitioner is a Mala Arayan, a member of a Scheduled Tribe. And any law touching the welfare of Mala Arayans has to be passed as contemplated by Art.244 and the other Articles like 338 and 339 of the Constitution. Evidently, the State Legislature has no power to legislate on this subject. 4. The State has power under Entry 19 of list II of Schedule VII to legislate regarding "forests", and S.76 of the Kerala Forest Act of 1961 confers power on the Government to make rules, inter alia, "for the protection, advancement, treatment and management of hill tribes". 5. The impugned rules are framed under this provision in the Kerala Forest, Act. The argument of the Government Pleader is that the hill tribes who are living in settlements in Reserved Forests are part of the forests, so that the State legislature has power to legislate regarding their protection, advancement, treatment and management. The Government Pleader has drawn our attention to a few decisions touching the interpretation of the Entries in the Lists in Schedule VII. The earliest decision is a decision of the Privy Council dealing with a similar question which arose under the Government of India ct of 1935. The decision is Megh Raj v. Allah Rakhia AIR. 1947 PC. 72. The next decision is United Provinces v. Mt. Atiqa Begum AIR. 1941 FC.16. The earliest decision is a decision of the Privy Council dealing with a similar question which arose under the Government of India ct of 1935. The decision is Megh Raj v. Allah Rakhia AIR. 1947 PC. 72. The next decision is United Provinces v. Mt. Atiqa Begum AIR. 1941 FC.16. In addition to these two decisions, we have two decisions of the Supreme Court in Commissioner of income-tax, West Bengal, Calcutta v. Benoy Kumar Sahas Roy AIR. 1957 SC. 768 and in Alma Ram v. State of Punjab AIR. 1959 SC. 519. All these decisions lay down that the Entries in the Lists in Schedule VII to the Constitution are to be interpreted in a liberal manner comprising within their scope all matters incidental thereto. This principle, that the Entries in the three Lists in Schedule VII have to be liberally interpreted, cannot be disputed. The question is even after giving the most liberal interpretation to Entry 19 "forests", can it be said that the hill tribes, who are living in settlements within the forests, form part of the forests so as to confer power on the State Legislature under the head "forests" to legislate upon? We find it impossible to agree with the contention of the Government Pleader that, for the reason that the hill tribes are living in settlements inside the forests, they also form part of the forests so that the State Legislature has power under Entry 19 of List 11 to legislate regarding their welfare, protection, advancement, treatment, management, etc. At this stage, it may be noted incidentally that Entry 20 in List H of Schedule VII is "protection of wild animals and birds", which indicates that even regarding wild animals and birds the makers of the Constitution provided separately with a separate Entry. Therefore, it is impossible to agree with the Government Pleader that forests must include the hill tribes living in the forests. 6. The Government Pleader has drawn our attention to a decision of this Court in Madhavan Nair v. State of Kerala 1953 KLT. 898, where a learned judge of this Court held that animals ferae naturae, so long as they remained in the state of nature, could not be the property of the owner of the land, but when such animals were killed or reclaimed by the owner of the land, they became his property. 898, where a learned judge of this Court held that animals ferae naturae, so long as they remained in the state of nature, could not be the property of the owner of the land, but when such animals were killed or reclaimed by the owner of the land, they became his property. We fail to see how this decision can enable the Government Pleader to substantiate his contention that forests include the hill tribes living in settlements inside the forests. In this connection, it may be, instructive to refer to as observation of the Supreme Court in Atma Ram's case already referred to The Supreme Court observed that a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however, that such a construction did not involve any violence to the language actually used If we accept the contention that forests include hill tribes, we have no doubt that we are doing violence to the wand'forsst'. We may also point out that the purpose of the Forest Act as it appears from the Preamble to the Act is only to unify and amend the law relating "to the protection and management of forest?" in the State. Evidently, S, 76 (a) of the Forest Act cannot be justified by Entry 19 in Schedule VII of the Constitution or at least by the Preamble to the Act itself. 7. We shall now look at the question from a slightly different angle. Ia Lists II and III the subject 'Scheduled Tribes' does not find place; and, naturally, in such a case Art.248 of the Constitution must come into operation regarding the residuary powers of legislation. Art.248 (1) provides for vesting residuary powers on the Parliament, with the result that if any subject is not covered either by List II or by List III the power to legislate thereon must be only with the Parliament. (This we are pointing out only as an additional reason, because, in our opinion, the subject is covered directly by Art.244 of the Constitution). Even then, the State Legislature has no power to legislate on Scheduled Tribes. Looking at the question in any manner possible, it is impossible to justify S.76(a) of the Forest Act; and therefore, the sub-section has to be struck down as beyond the Constitutional competence of the State Legislature. 8. Even then, the State Legislature has no power to legislate on Scheduled Tribes. Looking at the question in any manner possible, it is impossible to justify S.76(a) of the Forest Act; and therefore, the sub-section has to be struck down as beyond the Constitutional competence of the State Legislature. 8. In the view we have taken, it is not necessary for us to consider the propriety, reasonableness, etc. of the provisions in the impugned rules. However, we shall just indicate the nature of some of the rules. R.6 provides that no hillman shall leave his settlement or migrate to another settlement or to the low country without the permission of the headman of the settlement; and a hillman, who migrates outside a settlement after taking permission from the headman to avail of the concessions granted by the Harijan Welfare Department, will however have the option of returning to his settlement if he wishes to do so within five years, and this option shall be exercised by one family only once during the life time of the head of the family. R.7 lays down that the location, extent and boundaries of a settlement shall be permanently fixed, and the hillmen shall not be permitted to shift from place to place, except temporarily with special written permission of the Divisional Forest Officer, in cases of smallpox, outbreak of other epidemics or scarcity of water. R.11 provides that cases of trespass or encroachment within a settlement shall be decided by the headman subject to an appeal to the Divisional Forest Officer. R.12 allows the putting up of masonry houses in a settlement, but the land, will continue as land at the disposal of the Government or the Reserved Forest, as the case may be; and no compensation will be paid for the building or for any other improvement when the hillmen leave the settlement of their own accord or are made to leave for breach of any of the rules or on any other ground. R.13 provides that no hillman shall be entitled to the grant of patta or for any claim to any land cultivated in lands at the disposal of the Government or Reserved Forest however long his occupation may be. R.13 provides that no hillman shall be entitled to the grant of patta or for any claim to any land cultivated in lands at the disposal of the Government or Reserved Forest however long his occupation may be. The same rule provides that the hillmen may however be granted licence for cultivating the land; and the land so occupied shall not be alienable, but heritable, provided the inheritants are the descendants of true hillmen settled in the forest and hot the descendants of a marriage contracted with a low country-man or woman! R.20 provides that able-bodied adult males alone may be required to work for the Forest Department at prescribed rates of wages, such rates being fixed by the Divisional Forest Officer with the previous sanction of the Conservator of Forests, for three years at a time, calculated with reference to the wages paid during the preceding three years and the current rates! And R.25 provides that hillmen shall be bound to deliver to the Forest Department any ivory, elephant teeth, cardamom, wax, dammar and lac collected by them as well as honey or any other forest produce which they may be called upon to collect and deliver to the Forest Department in return for which they will be paid at the rates fixed in the schedule given in the rules. 9. The petitioner has averred that the Maharajas of Travancore and the officials of the Forest Department under the Maharajas kept the hillmen in servitude and made them work like slaves on the hills without wages and took the whole produce they collected without payment; that a set of rules for the treatment, advancement and management of the hillmen passed by the Government of Travancore in December 1911 were then in force; that when the Travancore-Cochin Forest Act of 1952 was promulgated, a fresh set of rules on the same lines were framed under S.93 thereof; and that ultimately, the present rules were framed taking power under S.76 (a) of the Kerala Forest Act. Constitutional infirmity is writ large in the rules; and the attempt appears to be to keep the hillmen permanently attached to settlements within Reserved Forests, probably with the idea of making them work for the Forest Department for wages prescribed, by the Divisional Forest Officer. As we have already stated, we need not go further into the fairness, reasonableness, propriety, etc. As we have already stated, we need not go further into the fairness, reasonableness, propriety, etc. of these rules (about which we have grave doubts), because S.76 (a) of the Forest Act under which these rules are framed is itself unconstitutional and beyond the competence of the State Legislature. 10. The writ petition is allowed, S.76 (a) of the Kerala Forest Act is struck down as unconstitutional and the Kerala Hillmen Rules, 1964 framed under the same sub-section are also declared illegal and void. The petitioner will get his costs from the State including counsel's fee of Rs. 250/-.