LG, ANDAMAN & NICOBAR ISLANDS Vs M/S BARE FOOT INNS & LEISURE PVT. LTD.
Bench: G.S. SINGHVI,SUDHANSU JYOTI MUKHOPADHAYA
Case number: SLP(C) No.-012125-012125 / 2010
Diary number: 29916 / 2009
Advocates: G. INDIRA Vs
B. VIJAYALAKSHMI MENON
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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,
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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
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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)”
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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
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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
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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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