IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) No. 12125 of 2010
LG, Andaman & Nicobar Islands and others … Petitioner(s)
Versus
M/s. Bare Foot Inns and Leisure Pvt. Ltd. … Respondent
O R D E R
G. S. Singhvi, J.
On 11.5.2012, arguments were heard in the context of letter dated
10.5.2012 sent by the Principal Secretary (Tribal Welfare), Andaman and
Nicobar Administration to the Additional Solicitor General and the order
was reserved.
In the main petition, the petitioners have questioned the judgment of
the Division Bench of the Calcutta High Court, Circuit Bench at Port Blair
whereby the appeal preferred by them against the order of the learned
Single Judge, who quashed notification dated 30.10.2007 issued under
Section 3(1) of the Andaman and Nicobar Islands (Protection of Aboriginal
Tribes), Regulations, 1956 (for short, ‘the 1956 Regulations’) declaring an
area upto five km. radius around the Jarawa Tribal Reserve as Buffer Zone
and prohibiting entry in the Buffer Zone of any person other than a member
of an aboriginal tribe was dismissed.
Notice in the special leave petition was issued on 8.3.2010 and
operation of the judgment impugned therein was stayed.
On 3.12.2010, this Court expressed the view that the petitioners have
not taken steps to implement the notification and directed their counsel to
make a statement on the issue of closure of all commercial and tourist
establishments within the Buffer Zone. Thereafter, several interim orders
were passed by the Court for ensuring faithful compliance of the
prohibition contained in the notification issued under Section 3(1) of the
1956 Regulations.
On 3.2.2012, the Court appointed S/Shri T. S. Doabia, Senior Advocate
and Sanjay Upadhyay, Advocate, whose names were suggested by the counsel
for the parties, as Court Commissioners with the direction that they shall
visit the Island mentioned in the notification and submit report. In
compliance of the directions given by the Court, the two Commissioners
visited the Island and submitted their separate reports. On 23.4.2012, the
Court noted the submission made by learned counsel for the respondent that
the Commissioners had not focused on the issue mentioned in order dated
4.11.2011 and directed the counsel for the petitioners to seek
comprehensive instructions on the question of stopping commercial and
tourism related activities within the Reserved Area and the Buffer Zone.
In compliance of the aforementioned direction, the learned
Additional Solicitor General produced letter dated 10.5.2012, the relevant
portions of which are extracted below:
“This is in continuation to our letter dated 3/5/2012 referred to
above and discussion held today with you, the following brief may
kindly be placed before the Hon'ble Supreme Court in the hearing of
11/5/2012 as directed by the Hon'ble Court in its order dated
23/4/2012,
1. No tourist establishment such as resorts, hotels, restaurants, bars
and paying guest accommodations except the government run Guest
Houses will be permitted within the Buffer Zone.
2. No commercial establishment/activities which may employ more than
20 persons or have annual turnover of Rs. One Crore or more will be
allowed in the Buffer Zone.
3. Visits of tourists during day time to Lime Stone Cave and Mud
Volcanoes existing in Baratang Island in the Buffer Zone may be
allowed to be continued.
Yours faithfully,
(Ajai Saxena)
Principal Secretary (Tribal Welfare)”
Learned counsel for the parties made their submissions mainly on the
issue of continuance of commercial and tourism related activities within
the Reserved Area and the Buffer Zone. While Ms. Indira Jaising, learned
Additional Solicitor General submitted that till a decision is taken by the
competent authority on the issue of allowing commercial and tourism related
activities within the Buffer Zone, the Court may permit the activities
specified in paragraphs 2 and 3 of the letter of the Principal Secretary,
Shri S. Ganesh vehemently opposed the continuance of any such activity in
the Reserved Area and the Buffer Zone by pointing out that the prohibition
contained in Notification dated 30.10.2007 and order dated 6.11.2007 issued
by Tehsildar, Ferrargunj is absolute. Shri Ganesh submitted that after
forced closure of the respondent’s resort, the petitioners can neither
undertake nor allow any commercial or tourism related activity in
contravention of Notification dated 30.10.2007.
We have considered the respective submissions. Notification dated
30.10.2007 which was challenged before the High Court and which is under
consideration in the special leave petition reads as under:
“EXTRAORDINARY
Published by Authority No. 243, PORT BLAIR,
TUESDAY, OCTOBER 30, 2007
ANDAMAN & NICOBAR ADMINISTRATION
Directorate of Tribal Welfare
NOTIFICATION
Port Blair, dated the 30th October, 2007
No. 234/2007/F.No. 1-752/2007-TW - In exercise of the
power conferred by Sub-Section (1) of Section 3 of the Andaman and
Nicobar Islands (Protection of Aboriginal Tribes), Regulation, 1956
(Regulation No. 3 of 1956), the Lt. Governor, A & N Islands, is
pleased to declare the area up to five km. radius around the Jarawa
Tribal Reserve notified vide No. 159/2004/F.No. 1-752/2002-TW
(PF) dated 15th September, 2004 from the Boundary Line starting
from Constance Bay in South Andaman to Lewis Inlet Bay in Middle
Andaman, as a Buffer Zone. Any/person other than a member of an
aboriginal tribe is prohibited from entering the Buffer Zone for
any commercial and/or tourism activities.”
In our view, the prohibition contained in the above reproduced
notification and order dated 6.11.2007 passed by Tehsildar, Ferrargunj is
unconditional. Therefore, till the notification is rescinded or amended,
no commercial or tourism related activity can be allowed within the
Reserved Area or the Buffer Zone and it is not possible for the Court to
approve the suggestions contained in paragraphs 2 and 3 of letter dated
10.5.2012 sent by the Principal Secretary (Tribal Welfare), Andaman and
Nicobar Administration. We, therefore, direct that henceforth no
commercial and tourism related activities shall be carried out by the
administration or any private individual in violation of the prohibition
contained in notification dated 30.10.2007 and order dated 6.11.2007.
It shall be the duty of the Principal Secretary (Tribal Welfare) and
other officers of the Administration of Andaman and Nicobar to ensure total
compliance of the prohibition contained in notification dated 30.10.2007
and this order. Any breach of this order will entail punishment under the
Contempt of Courts Act, 1971.
…..……….....……..….………………….…J.
[G.S. SINGHVI]
…………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
July 02, 2012.
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