Jharkhand High Court
Adiwashi Buddhijivi Manch And Ors vs The Union Of India And Ors on 4 February, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No.49 of 2021
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Emil Walter Kandulna and Anr. ... In-Person
Versus
The State of Jharkhand and Ors. ... Respondents
WITH
W.P.(PIL) No.1589 of 2021
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Adiwashi Buddhijivi Manch and Ors. ... Petitioners
Versus
The Union of India and Ors. ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Emil Walter Kandulna, In-person
[in W.P.(PIL) No.49 of 2021]
Mr. Ajit Kumar, Senior Advocate
[in W.P.(PIL) No.1589 of 2021]
For the State : Mr. PAS Pati, Advocate
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ORAL ORDER
10/Dated 04th February, 2022
1. With the consent of the parties, the matter has been taken up through conferencing. They have no complaint whatsoever regarding audio and/or video quality.
2. The matter has been heard at length.
3. In the writ petition being W.P.(PIL) No.49 of 2021 apart from the other prayers, the validity of the Panchayati Raj Act, 2001 has also been questioned. In writ petition being W.P.(PIL) No. 1589 of 2021, the prayer has been made for issuance of a direction upon the State to strictly follow the mandate of the PESA Act, 1996 since the Panchayati Raj Act, 2001 has not been enacted strictly in terms of the PESA Act, 1996.
4. The party in-person, namely, Emil Walter Kandulna in W.P.(PIL) No.49 of 2021 has submitted that the State of Jharkhand is not following the [2] mandate of the 73rd Amendment of the Constitution of India. According to him, the 73rd Amendment has been enacted in the Constitution of India to empower the local self-government/local bodies for the purpose of democratic decentralization of power and resources from the Centre to elected representatives at lower levels in order to allow individuals to participate more directly in governance.
5. Mr. Ajit Kumar, learned senior counsel appearing in W.P.(PIL) No. 1589 of 2021 has submitted that the Panchayati Raj Act, 2001 cannot be said to be in consonance with the PESA Act, 1996 since the Panchayati Raj Act, 2001 has not been enacted in terms of Section 4 of the PESA Act, 1996.
6. Mr. P.A.S. Pati, learned counsel appearing for the State of Jharkhand has submitted that so far as the validity of the Panchayati Raj Act, 2001 is concerned, which has been questioned on the ground of legislative competency of the State of Jharkhand, is having no substance, reason being that the Panchayati Raj Act has been extended in the Schedule Areas in view of the provision of Article 243-M4(b) of the Constitution of India. The Parliament has come out with PESA Act, 1996 in view of the provision conferred under Article 243-M4(b) of the Constitution of India and thereafter, the Panchayaty Raj Act, 2001 has been enacted.
He further submits, refuting the submission made on behalf of the learned counsel for the petitioner and the party in-person, that it is incorrect to say that the Panchayati Raj Act, 2001 is in the teeth of Section 4 of the PESA Act, 1996. The State has taken the plea in the counter affidavit by referring to the different Acts which according to the [3] State of Jharkhand will be considered to be compliance of the provisions of Section 4 of the PESA Act, 1996.
7. In response to such submission advanced on behalf of the State of Jharkhand, Mr. Ajit Kumar, learned senior counsel for the petitioner in W.P.(PIL) No.1589 of 2021 has submitted that since the State has come out with different statutes which cannot be said to be compliance of the mandate of the PESA Act, 1996 as under Section 4 thereof, rather, the Panchayati Raj Act, has been extended in the Scheduled Areas in view of the provision of PESA Act, 1996, therefore, it is incumbent upon the State of Jharkhand to come out with a specific rules in consonance with the provision of Section 4 of PESA Act, 1996.
He further submits that the State has prepared a Draft Rule in the year 2019. He submits that even the committee of the Legislative Assembly has focused on enactment of the Rules in terms of the PESA Act, 1996. He has further referred to a communication of the concerned Ministry of the Union Government asking the State Government to make out a rule in this regard. He has also referred to the different rules which have been enacted by the different States, like, Gujarat, Himachal Pradesh, etc. But as yet, Rule has not been enacted.
8. This Court, having heard the learned counsel for the parties and considering the aforesaid submission as well as the materials available on record, deem it fit and proper to refer the main objective of the 73 rd Amendment of the Constitution of India which was for decentralization of power and resources from the Centre to elected representatives at lower levels in order to allow individuals to participate more directly in [4] governance. The further purpose is requiring the State to organize village Panchayats and grant them necessary power in authority to enable them to function as units of self-government. The 73rd Amendment envisages the Gram Sabha as the foundation of the Panchayat Raj system to perform functions and powers at the local level in order to provide Three Tier Panchayati Raj system at the village, intermediate and district levels.
9. In view of the aforesaid underlying objective behind 73 rd Amendment, this Court, before passing appropriate order requires the State Government to explain the following queries:
(i) The State of Jharkhand is directed to explain as to why the Draft Rules which has been framed in the year 2019 has not yet been finalized, when, two departments namely, Land Reforms & Registration and Home and Prison Department have already approved the said Draft and even there are correspondences by the concerned Ministry of the Union Government and report of the Legislative Assembly.
(ii) The State of Jharkhand is to explain as to how the provisions of different statutes can be merged with the provisions of Panchayati Raj Act when there is a specific amendment by way of 73 rd Amendment in the Constitution of India for the sole purpose of decentralization of power and resources from the Centre to elected representatives at lower levels in order to allow individuals to participate more directly in governance.[5]
(iii) The State of Jharkhand is directed to explain as to why no reference has been made while auctioning the Balughats of taking permission from the concerned Gram Sabha.
(iv) The State of Jharkhand is directed to bring on record few models of Panchayats working in different villages.
(v) The State of Jharkhand is directed to bring on record the documents, wherein, the Gram Panchayats have taken decision in granting lease/licence for mining (minor) and sand ghats.
(vi) The State of Jharkhand is directed to bring on record the decision taken by any of the Gram Panchayats across the State pertaining to development schemes.
(vii) The State of Jharkhand is further directed to give reply, para-wise, to all the affidavits filed on behalf of the petitioner (in both the cases).
10. Let the said affidavit be filed on or before the next date of hearing.
11. Let these cases on 25.02.2022.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh/-