HARISH TANDON,J. - (1.) THE solitary point in issue in this writ petition is whether the petitioner's resort is located within the radius as defined in the notification dated 30th October, 2007 issued in exercise of the power conferred under Sub-section (1) of Section 3 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes), Regulation, 1956.
(2.) BY notification dated 29th March, 2005 issued by the A and N Administration, a scheme was framed for granting 50% capital subsidy on the industrial units engaged in tourism, information technology, fisheries, coconut and arecanut in rural areas. The object behind such scheme was to promote the industrial units engaged in above referred activities in the rural areas and was operative on and from 1st April, 2002 till 31st March, 2007. In order to avail the capital subsidy under the said scheme, the petitioner purchased the land situates at Sundergarh at Baratang for setting up a resort for tourism purposes. The conversion of the land for tourist purpose was granted on 14th March, 2007 subject to the conditions that the petitioner or the successor in interest shall pay the land revenue at revised rate regularly, shall not use the land for any other purposes other than for which the permission was granted and shall strictly follow the setback rules. The petitioner after obtaining loan from the State Bank of India raised the construction and started the hotel activities by providing the lodging and the food to the tourists. In the mean time, the A & N Administration, Directorate of Tribal Welfare published a notification dated 30th October, 2007 declaring the area around Jarawa Tribal reserve as a buffer zone. It is notified therein that an area up to five kilometres radius around the said tribal reserve from the boundary line starting from Constance Bay in South Andaman to Lewis Inlet Bay in Middle Andaman as buffer zone. Some of the industrial units who felt aggrieved by the declaration of the boundary line as buffer zone challenged the said notification dated 30th October, 2007 by filing a writ petition being W.P. No.328 of 2007 before this Court. It is tried to be contended therein that the declaration of an area as buffer zone by the Directorate of Tribal Welfare is opposed to Section 3 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes), Regulation, 1956 (in short said Regulation) which only authorizes the Chief Commissioner to declare the reserved area of the aboriginal tribes and as such the declaration of an area as buffer zone is beyond the competence of the said authority. The aforesaid contention was upheld on the ground that the competence of the Chief Commissioner relates to the declaration of the reserved area for aboriginal tribes and not the buffer zone. The Mandamus appeal being MAT No.31 of 2009 was also dismissed thereby affirming the judgement passed in the said writ petition. The special leave petition being SLP(Civil) No.12125 of 2010 was admitted and interim order of stay of the impugned order was passed by the Hon'ble Supreme Court. The SLP was again listed on 02.7.2009 and a direction was made upon the authorities to implement the said notification relating to buffer zone and to file the statement relating to the issuance of the closure of all commercial and tourists establishment within the buffer zone on the next date.
(3.) IT appears that on 21st April, 2008, the petitioner applied for grant of bar licence and a proceeding was initiated in the office of the Deputy Commissioner, North & Middle Andaman District, Mayabunder. The Tehsildar, Rangat was directed to submit a report as to whether the petitioner's resort comes within the buffer zone or not. The Tehsildar, Rangat reported that the said resort is located more than five kilometres away from Jirkatang Jarawa area and more than two kilometres from Kadamtola Jarawa (Primitive Tribal Group) reserve. However, it was doubted by the said Tehsildar, Rangat that he is unable to report conclusively in absence of the exact buffer zone map which is not available with his office. In response to the said report the Secretary (Tribal Welfare) was approached for his comments. According to the comments submitted in terms of the said response, it appears that the said authority indicated that necessary amendments in the said Regulation is under active consideration of the Administration. The said comment does not speak about whether the petitioner's resort is situated within the buffer zone or not. But the authorities, on the basis of the report of the Tehsildar, Rangat that the resort is situated within the radius of five kilometres from Kadamtola Jarawa (Primitive Tribal group) reserve, held that the said resort is within the five kilometres radius and is required to shut down its operation. Subsequently, the Assistant Commissioner (Settlement) on being approached by the Chief Secretary reported that the resort is located within the five kilometres radius from all directions and therefore comes within the buffer zone area. The basis for the measurement was done from the digitalised arc view software by superimposing on A & N Islands map. Subsequently, a notice dated 8th December, 2010 was issued upon the petitioner to close down the activities as the petitioner's resort falls within the buffer zone as declared by the authorities. By further order No.3 dated 14th January, 2011 the petitioner was reminded to shut down her activities and by further order dated 8th February, 2011, the Tehsildar, Rangat was directed to seal the petitioner's resort which is impugned in this writ petition. Mr. Rajinder Singh, learned advocate appearing for the petitioner submits that the Tehsildar, Rangat in his report expressly indicated that the situs of the petitioner's resort is beyond the radius of the buffer zone and as such the closure notice is palpably illegal and have been issued with non-application of mind. He succinctly submits that nowhere it has been declared by the authorities concerned that the Sundergarh village comes within the radius of the buffer zone. The action of the authorities concerned is in colourable exercise of its power which per se is arbitrary and unreasonable.;