EACHARAN ITTIATHI Vs. STATE OF KERALA

JUDGEMENT

(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.) 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. 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.