Geetashree Oraon v. The Governor, the State of Jharkhand

Compensation in Land Acquisition, Rehabilitation and Resettlement Act, 2013' to the Scheduled Areas of Gumla District under Article 244(1) and provisions in the Fifth Schedule to the Constitution of India. (ii) That Your Lordships may kindly hold and declare that the land acquisition proceeding initiated by the District Land Acquisition Officer, Gumla for new proposed construction of Palma-Gumla Section NH-23 bye-pass Road from village Sakarauli to village Redwa (about long 10 KM & wide 200 feets) in lieu of pre-existing old Palma-Gumla Section NH-23 Road (about 5 KM) without notification/ application of 'The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013' to the Scheduled Areas of Gumla District without in conformity with Article 244(1) and provisions in the Fifth Schedule to the Constitution of India. (iii) That Your Lordships may kindly be pleased to direct to notify 'The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013' conformity with the Sub-Clause-1 of Clause-5 of the Fifth Schedule to the Constitution of India for land acquisition in the Scheduled Areas such as Gumla District for public purposes.

(iv) That Your Lordships may further be pleased to direct to determine value of the land of the concerned villagers on the basis of actual prevailing market value after specific exceptions and modification in "The Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013" by the Governor of the State of Jharkhand with the advice of the Jharkhand Tribes Advisory Council in conformity with the Article 244(1) and the provisions in the Fifth Schedule to the Constitution of India. (v) That Your Lordships may kindly hold and declare that the land of the Scheduled Tribes in the Scheduled Areas, whose land is less than 5.00 Acres, is required to acquisition for which firstly the concerned respondents shall rehabilitate and resettle with equal in amount of land to be acquired by the District Land Acquisition Officer, Gumla for Scheduled Tribes. (vi) That Your Lordships may kindly be pleased to direct to the concerned respondents/ all concerned authorities to protect the members of the Scheduled Tribes who live in the Scheduled Areas of the State of Jharkhand of the provisions of the Fifth Schedule to the Constitution of India.

(vii) That Your Lordships may kindly be pleased to direct the concerned respondents to pay the agriculture compensation whose land has been illegally acquired and impair the value of the land materially or to render it unfit for purposes of the tenancy relating to the land proposed new construction of Palma-Gumla Section NH-23 bye-pass Road from village Sakarauli to village Redwa (about long 10 KM & wide 200 feets) in lieu of pre-existing old Palma-Gumla Section NH-23 Road (about 5 KM). (viii) That Your Lordships may kindly be pleased to direct to stay construction of proposed new construction of Palma-Gumla Section NH-23 bye-pass Road from village Sakarauli to village Redwa (about 10 KM & wide 200 feets) in lieu of pre-existing old Palma-Gumla Section NH-23 Road (about 5 KM) during the pendency of this writ petition and/or till the notification of “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” in conformity with the Article 244(1) and provisions of the Fifth Schedule to the Constitution. 3 W.P(PIL) No.2327 of 2022 (ix) That Your Lordships may kindly be pleased to direct the concerned respondents to give other consequently relief which is incidental with the main relief.”

The petitioner has referred to the news published in a local newspaper for the acquisition of lands under section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, Land Acquisition, Rehabilitation and Resettlement Act) for the proposed bypass road. The grievance of the petitioner is that the acquisition of the agricultural lands of the residents of the Scheduled Areas is proposed by the appropriate Government without providing compensatory lands equal to the acquired lands for rehabilitation and resettlement of the members of the Scheduled Tribes. The petitioner has pleaded that the proposed construction of Palma-Gumla Section NH-23 bypass road passing through village Sakarauli to village Redwa stretching over about 10 kilometers is in utter disregard to the constitutional mandate and not in the interest of the public or nation. The petitioner further pleads that for construction of the said NH-23 bypass road to replace the existing old Palma-Gumla Section NH-23 bypass road there must be a notification by the Governor of the State of Jharkhand to make the Land Acquisition, Rehabilitation and Resettlement Act applicable in the Scheduled Areas of the State of Jharkhand; Gumla being one of the Scheduled Areas. In this context, the petitioner also refers to D.O Letter dated 11th May 2007 issued by the Ministry of Tribal Affairs under which a general instruction was issued to the State authorities that the members of the Scheduled Tribes should get protection of the provisions of Fifth Schedule to the Constitution of India.

Mr. Kaushalendra Prasad, the learned counsel for the petitioner submits that the proposed acquisition of land falling within the Scheduled Areas is illegal inasmuch as the provisions of the Land Acquisition, Rehabilitation and Resettlement Act can be made applicable within the Scheduled Areas of the State of Jharkhand by a notification of the Governor of the State in exercise of the powers under the Fifth Paragraph of Fifth Schedule and not otherwise. The learned counsel for the petitioner refers to “Samatha v. State of A.P” (1997) 8 SCC 191, “Ramkripal Bhagat & Ors. v. State of Bihar” (1969) 3 SCC 471, “Chebrolu Leela Prasad Rao v. State of 4 W.P(PIL) No.2327 of 2022 A.P” (2021) 11 SCC 401, to submit that the powers exercised by the Governor under Fifth Schedule to the Constitution of India is unbridled and the executive powers of the State Government shall be subject to or subservient to the Governor’s power under Fifth Schedule to the Constitution. According to the learned counsel for the petitioner, the administration and control of the Scheduled Areas vest absolutely in the Governor of the State and no law either Central or State shall operate within the Scheduled Areas without express permission of the Governor of the State.

Article 244 of the Constitution of India which deals with the administration and control of the Scheduled Areas and Scheduled Tribes in any State provides that Fifth Schedule to the Constitution shall apply to the administration and control of the Scheduled Areas and Scheduled Tribe in any State other than the State of Assam, Meghalaya, Tripura and Mizoram. Paragraph 6(1) of Fifth Schedule to the Constitution provides that “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas. The petitioner has brought on record the Presidential Order to show that the district of Gumla is a Scheduled Area to be administered under Fifth Schedule to the Constitution. Even assuming that village Sakarauli is a Scheduled Area, a declaration in this regard has come only on 11th April 2007. Therefore, the Land Acquisition Act, 1894 which came into force on 1st March 1894 was a pre-existing law operating in the District of Gumla. The provisions under sections 91 and 92 of the Government of India Act, 1935 under which the excluded areas were dealt with are also not applicable in the present case because the present day Scheduled Areas particularly the district of Gumla were not declared by the Governor General as the excluded or partially excluded area. At that time, the Governor General was empowered to declare excluded or partially excluded areas and the laws made by the Federal Legislature or the Provincial Legislature were not to apply to any excluded or a partially excluded area unless the Governor General by a public notification so directed. Article 13 of the Constitution under clause 3(b) provides that the “laws in force” shall include the laws passed or made by a Legislature or other competent authority in the territory of India before the commencement 5 W.P(PIL) No.2327 of 2022 of the Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

The predecessor of the Land Acquisition, Rehabilitation and Resettlement Act was the Land Acquisition Act, 1894 which had replaced the Land Acquisition Act, 1870 (Act No.X of 1870). The Act No.X of 1870 was passed by the Governor General of India in Council and received the assent of the Governor General on 1st April 1870. The Land Acquisition Act, 1894 is also a pre-Constitution legislation which according to Article 372 of the Constitution of India shall be a valid law. As it would appear from the recitals in the Land Acquisition Acts of 1870 and 1894, the operation of these Federal/Provincial Government legislations was not excluded in the areas presently falling under the State of Jharkhand. This becomes clear from section 1 of the Land Acquisition Act, 1870 which declared that the Act shall extend to the whole of British India. The Land Acquisition Act, 1894 also operated to the whole of India except the State of Jammu and Kashmir.

In “Chebrolu Leela Prasad Rao”, the Hon’ble Supreme Court held that the Fifth Paragraph of Fifth Schedule which starts with a non- obstante clause authorizes the Governor to issue a notification to the effect that any particular Act of Parliament or the State Legislature shall not apply to a Scheduled Area or any part thereof. It also empowers the Governor to create exceptions and modifications and to issue notifications giving it retrospective effect but it does not confer upon the Governor the power to enact a law. The Hon’ble Supreme Court held as under: “39. Para 5 of Schedule V deals with the law applicable to the Scheduled Areas. It contains a non obstante clause and authorises the Governor to issue a notification to the effect that any particular Act of Parliament or of the State Legislature shall not apply to a Scheduled Area or any part thereof. It also empowers the Governor to create exceptions and modifications as he may specify in the notification concerning the applicability of such Act of Parliament or legislature of the State. The Governor is empowered to issue notification giving it retrospective effect. It is apparent that the law contained in the Act can be modified by the Governor or can be excluded in its application from the Scheduled Area or any part of it. Thereupon such Act, hence, of Parliament or the State Legislature can be applied with exceptions and modifications to the Scheduled Area. Para 5(1) confers power upon the Governor not concerning the only exclusion of Act of Parliament or the State but to modify or create exceptions.

39.1. Para 5(1) of Schedule V does not confer upon Governor power to enact a law but to direct that a particular Act of Parliament or the State Legislature shall not apply to a Scheduled Area or any part thereof or shall apply with exceptions and modifications, as may be specified in the notification. The Governor is not authorised to enact a new Act under the provisions contained in Para 5(1) of Schedule V to the Constitution. Area reserved for the Governor under the provisions of Para 5(1) is prescribed. He cannot act beyond its purview and has to exercise power within the four corners of the provisions.

39.2. Para 5(2) of Schedule V deals with the power of the Governor to 7 W.P(PIL) No.2327 of 2022 make regulations for the peace and good government in a Scheduled Area of a State. The Governor has to obtain the advice of the Tribes Advisory Council in the matters pertaining to Para 5(2), if it has been constituted. The Governor is expressly authorised to prohibit or restrict the transfer of land by any member of Scheduled Tribes and also regulate the allotment of land to the members of the Scheduled Tribes in the Scheduled Areas. Para 5(3) provides that while making any such regulations as mentioned in Para 5(2), the Governor has the power to repeal or amend any Act of Parliament or the legislature of the State or any existing law which is for the time being applicable to the area in question, but that is for peace and good governance of the Scheduled Area. The regulation made by the Governor to be effective is required to be assented by the President. Prior assent of the President is mandatory for regulation to be put into effect. There is a further rider on the regulatory power of the Governor provided by Para 5(5). In case the Tribes Advisory Council has been constituted before making any regulation, the Governor is duty-bound to consult such Council. No regulation can be made without consultation with the Council in case it has been formed.”

In “Ram Kirpal Bhagat & Ors. v. State of Bihar” (1969) 3 SCC 471, the issue was whether the Land Customs Act, 1924 was made operative in the Santhal Parganas on the date of occurrence. In that context, this is pertinent to indicate that the areas falling within the Santhal Parganas were declared excluded areas and there was no declaration by the Governor General that the Land Customs Act, 1924 shall apply to the Santhal parganas. Therefore, it was held that the Land Customs Act, 1924, though a pre-Constitution law, was not a pre-existing law applicable in the Santhal Parganas. The Hon'ble Supreme Court held as under: “24. The question which next arises for consideration is whether the Land Customs Act, 1924 applied on the relevant date of occurrence namely 13 December, 1961 to the Santhal Parganas. The Land Customs Act was enacted in the year 1924 and it was not declared to apply to the Santhal Parganas.

In “Samatha” the issue was regarding the prohibition on the transfer of immovable property situated in the Agency tracts under section 3(1)(a) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959. The Hon’ble Supreme Court held that the predominant object of the Paragraph 5(2) of Fifth Schedule of the Constitution and the Regulation is to impose a total prohibition on the transfer of immovable 9 W.P(PIL) No.2327 of 2022 property to any person other than tribal. Mr. Kaushalendra Prasad, the learned counsel for the petitioner submits that the expression “person” would include the State and Central Governments which shall not be entitled to deal with the lands belonging to the tribals in the Scheduled Areas. While this is true in a limited sense that the State cannot deal with transfer of the lands of the tribals even by way of lease but the expression “transfer” is quite distinguishable from the expression “acquisition”. By acquiring the tribal lands, the State is not transferring the lands to a non-tribal. The State is a caste and religion neutral entity and, moreover, when the State exercises its powers under a valid law and the operation of which has not been excluded by a notification of the Governor of the State then such exercise of powers cannot be held illegal and impinging upon the powers of the Governor under Fifth Schedule to the Constitution.

This writ petition is completely misdirected and misconceived and is liable to be dismissed and, accordingly, W.P(PIL) No.2327 of 2022 is dismissed. (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.) sudhir /AFR