Patna High Court
Basudeo Besra vs Union Of India (Uoi) And Ors. on 22 December, 1995
Equivalent citations: 1996(1)BLJR425
Author: D.P. Wadhwa
Bench: D.P. Wadhwa, S.J. Mukhopadhaya
JUDGMENT D.P. Wadhwa, C.J.
1. In this petition under Article 226 of the Constitution, the petitioner, a convenor of certain social, cultural and literary organisation of Santhal Paraganas and Chotonagpur divisions, has claimed a declaration that the Bihar Panchayat Raj Act, 1993 (in short the Act) is not applicable to the Scheduled Areas in the State of Bihar, and consequently to restrain the State Election Commission and the State of Bihar from holding any election under the Act in that area.
2. Field of controversy is quite small but arguments some what extensive. Part IX of the constitution deals with the Scheduled and Tribal Areas. Under Article 244 falling in that part the provisions of the Fifth Schedule to the Constitution shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State, the State of Bihar being one of such States. If we now refer to the Fifth Schedule, Part C thereof defines the 'Scheduled Areas'. The expression 'Scheduled Areas' means such areas as the President may by order declare to be Scheduled Areas. Rest of Part C is not quite relevant for our purpose.
3. Now under the Order issued by the President the following are the Scheduled Areas in the State of Bihar --
Bihar
1. RANCHI district
2. SINGHBHUM district
3. Latehar sub-division and Bhandrea block of Garhwa subdivision in palamau district.
4. Dumka, Pakur, Rajmahal and Jamtara sub-division and Sundar Pahadi and Boraij ore blocks of Godda sub-division.
5. Santhal Parganas district.
Reference in this connection may be made to the Scheduled Areas (part A States) Order, 1950 (Constitution Order 9) dated 23.1.1950 and the Scheduled Areas (State of Bihar, Gujarat, Madhya Pradesh and Orissa Order, 1977 (Constitution Order, 109) dated 31.12.1977 which was promulgated after rescinding the Order cited first so far as it related to the States of Bihar Gujarat, Madhya Pradesh and Orissa. As to what is the law applicable to Scheduled Areas we may as well refer to Para 5 of Part B of the Fifth Schedule which in relevant part, is as follows : --
5. Law applicable to Scheduled Areas. -- (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
4. By the Constitution (Seventy-third) Amendment Act, PART IX relating to the Panchayats was introduced in the Constitution and it came into force with effect from 24.4.1993. The State Legislature in view of the powers conferred by Part IX of the Constitution enacted the Bihar Panchayat Raj Act, 1993 and thus repealed and replaced the earlier Bihar Panchayat Raj Act, 1947 and the Bihar Panchayat Samiti and Zila Parishad Act, 1961. We may as well reproduce the aims and objects which led to the introduction of the Bill and which ultimately took the form of the Act: --
Aims and objects.--Consequent upon the changes incorporated in the seventy-third Constitution (Amendment) Act, 1992 to bring it in conformity with the purposes substance and direction it has become necessary to make a new Act repealing the Bihar Panchayat Raj Act, 1947 and Bihar Panchayat Samiti and Zila Parishad Act, 1961.
The bill is for establishing a three tier Panchayat Raj system in the State with elected bodies at Village, Block" and. District levels for greater participation of the people for more effective preparation and execution of plans for economic development and social justice.
The bill aims to endow the Panchayats with functions and powers so as the enable them to function as vibrant institutions of local self-government with people's greater participation in managing and conducting their own affairs besides imparting certainty, continuity, democratic content and dignity for the realisation of economic and social justice.
The following are the salient features of the bill
(a) It establishes a three tier Panchayat system in the State based on population. It envisages elected bodies at all the three levels.
(b) It provides for reservation of seats in favour of Scheduled Castes, Scheduled Tribes and Backward Classes in proportion to their population and for reservation of at least one third seats for women for each and all categories at all levels.
(c) It also provides for reservation of seats and office of chair persons at all levels for the persons belonging to Scheduled Castes, Scheduled Tribes and Backward Class citizens.
(d) It also envisages constitution of State Election Commission and the Finance Commission.
(e) It envisages to strengthen the Cram Katchari by enhancing its civil and criminal powers.
(f) Effective control of the Zila Parishad, Panchayat Samiti and Gram Panchayat over the State Government employees working at the District Block and lower levels of offices.
Provisions to this effect have been made in this Act and the aim of the Bill is to get the same enacted.
5. Competence of the State Legislature to enact this Act cannot be disputed in view of Entry 5 of List II-(State List) of Seventh Schedule of the Constitution which is as under : --
5. Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
6. The contention of learned Counsel for the petitioner is based on Article 243-M falling in Part IX of the Constitution which is as under :
--
243-M. Part not to apply to certain areas.--(1) Nothing in this part shall apply to the Scheduled Areas referred to in Clause (1), and the tribal areas referred to in Clause (2), of Article 244. (2) Nothing in this Part shall apply to:
(a) the States of Nagaland, Meghalaya and Mizoram;
(b) the Hill Area in the State of Manipur for which District Council exist under any law for the time being in force.
(3) Nothing is this Part:
(a) Relating to Panchayats at the district level shall apply to the hill areas of the District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force;
(b) Shall be construed to effect the functions and powers of the Darjeeling Gorkha Hill Council constituted under such law.
(4) Notwithstanding anything in this Constitution --
(a) the Legislature of a State referred to in Sub-clause (a) of Clause (2) may, by law extend this Part to that State, except the areas, if any, referred to in Clause (1), if the Legislative Assembly of that State passes' a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting;
(b) Parliament may, by law, extend the provisions of this part to the Scheduled Areas and the tribal areas referred to in Clause (1) subject to such exception and modifications as may be specified in such law, and no such law. shall be deemed to be an amendment of this Constitution for the purpose of Article 368.
In support of his submission, learned Counsel for the petitioner also referred to a Bench decision of the Andhra Pradesh High Court in A. Vasanth Rao V. Govt. of A.P. . It was submitted before us that against the aforesaid decision of the Andhra Pradesh High Court, Special Leave Petition had been filed. During the course of arguments it was submitted that the arguments had since been heard by a Bench of the Supreme Court and judgment was reserved and could be expected any day. It was, therefore, suggested that we might hold over the decision in the present case. We however, called for the latest position of the case in the Supreme Court through the computer and it shows that C.A. No. 4518 of 1995 is pending in the Supreme Court but at what stage the message does not say anything. On two or three occasions we adjourned the matter at the instance of the learned Advocate General to find out if any notification for holding of the elections under the Act was likely to be issued. He informed us that the notification was likely to be issued by 31st December, 1995. It was also suggested that we could stay the operation of the Act in its applicability to Scheduled Areas and await the decision of the Supreme Court, we did not think that was quite right a course and decided to hear the matter and dispose of the same finally.
7. Article 243-M is quite explicit. It is, therefore, clear that the provisions of the Act is no far as these are relatable to those contained in Part IX would not be applicable to the Scheduled Areas. It was not disputed before us that the provisions of Part IX as contained in the Act are so intermingled with other provisions of the Act that it was difficult to separate them. As a matter of fact, Part IX of the Constitution provides as to what is Gram Sabha and also the constitution and composition of Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. Then there is other provisions for reservation of seats for the Scheduled Castes, the Scheduled Tribes and the women falling in both the above categories and also general category. This Part also prescribes the powers that could be conferred to the Panchayats and their authority and responsibilities. There is then provision for imposition of taxes etc. by the Panchayats; the constitution of the Finance Commission to review financial position and the audit of accounts of the Panchayats; and the elections of the Panchayats. Based on these very provisions the Act has been made by the State Legislature. It is there fore, difficult to see how the Act can be made applicable to the Scheduled Areas in a skeleton form.
8. Learned Advocate General submitted that Article 40 of the Directive Principles of State Policy could be brought into play to uphold the validity of the Act. That Article deals with organising village Panchayat and enjoins upon the State to take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. We are unable to appreciate as to how Article 40 can help the respondents. Sub-clause (b) of Clause (4) of Article 243-M empowers the Parliament by law to extend the provisions of Part IX to the Scheduled Areas subject to such exceptions and modifications as might be specified in such law and there is a safeguard under this sub-clause itself that no such law shall be deemed to be an amendment of the Constitution for the purpose of Article 368. It is thus clear to us that the provisions of Part IX of the Constitution could not be made applicable to the Scheduled Areas in the State of Bihar.
9. We also do not think that para 5 of Part B of Fifth Schedule which we have quoted above is of any help to the respondents. It was submitted that unless the Governor by Public notification directed that the Act shall not apply to the Scheduled Area or any part thereof in the State or shall apply to a Scheduled area or any part thereof subject to such exceptions and modification as he may specify, the Act would be applicable to the Scheduled Areas. It was submitted that since it would be notwithstanding anything contained in the Constitution when power was exercised by the Governor under Para 5, it would override Article 243-M. There would appear to be some other conflict between Para 5 of Part B and Clauses 4(b) of Article 243-M, but Clauses 4(b) of Article 243 -M also starts with the words "notwithstanding anything in this Constitution". This Clauses 4(b) of Article 243-M has been inserted by a later amendment of the Constitution. It would prevail over Para 5 of Part B of the Fifth Schedule to the Constitution.
10. It would thus appear to us that the Act would be inapplicable to the Scheduled Areas. We, however, do not see any conflict between Entry 5 of List II (State List of the Constitution and the provisions of Part IX of the Constitution. Entry 5 gives the field of legislation by the State, but what the provisions that legislation could also contain have been given in Part IX of the Constitution. It is only Article 243-M which comes in the way of State legislature in making the law containing provisions of Part IX applicable to Scheduled Areas. To the extent aforesaid, we agree with the view expressed by the Andhra Pradesh High Court in Arka Vasanth Rao's Case A.I.R. 1995 Andhra Pradesh 274.
11. Accordingly, the writ application is allowed. It is held that the Bihar Panchayat Raj Act, 1993 shall not apply to the Scheduled Areas, namely, (1) Ranchi district, (2) Singhbhum district, (3) Latehar sub-division and Bhanadarea block of Garhwa sub-division in Palamau district, (4) Dumka, Pakur, Rajmahal and Jamtara Sub-division and Sundar Pahadi and Boraijore Blocks of Godda sub-division and (5) Santhal Parganas district and we restrain the respondents from holding the election for Panchayats in these Scheduled Areas. There will be, however, no order as to costs. Rule is made absolute.
S.J. Mukhapadhaya, J.
12. I agree.