Bombay High Court
Vijaysingh Gajrajsingh Chauhan vs Governor Of Maharashtra Raj Bhawan, ... on 21 December, 2020
Author: Avinash G. Gharote
Bench: S.B. Shukre, Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3077 OF 2020
Vijaysingh Gajrajsingh Chauhan
Vs.
Governor of Maharashtra and ors
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri M.C.Jeswani Advocate for petitioner.
Shri A.M.Deshpande, Addl.. Govt.Pleader for respondent nos. 1 to 4
CORAM :- SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED :- 21.12.2020 Heard learned counsel for the petitioner and learned Additional Government Pleader for respondents.
Learned AGP seeks further time in the matter and makes a request that this matter be kept for hearing on 04.01.2021, as, in this case, leaned Advocate General is going to appear on behalf of respondents to address the Court.
Learned counsel for the petitioner prays for grant of interim relief in the matter.
Learned Additional Government Pleader submits that till 04.01.2020 such prayer be not considered as learned Advocate General who is going to address the Court, would clarify the whole issue.
::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 14:25:26 :::2 wp3077.20.odt We find no difficulty in granting further time to the State. But, we are of the view that if any more time is to be granted to the State and the impugned notifications dated 18.05.2020 and 23.09.2020 along with corrigendum dated 02.06.2020 are not stayed in effect or operation by any interim order, it may lead to further complications. Bare perusal of both the notifications and the corrigendum in question would show that by an executive act, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, has been amended. Notification dated 18.05.2020 inserts new section, section 6A to the said Act. The corrigendum dated 02.06.2020, further adds the entries such as godowns, warehouses, cold storages, Haats (markets) and cremation grounds in sub-section (2) after clause (m) of Section 3 of the said Act. The notification dated 23.09.2020 inserts clause (k-1) after clause (k) in sub-section (1) of Section 3 of the said Act.
The effect of these notifications prima facie is nothing but to amend the Act of Parliament. At this time, the learned counsel for the petitioner invited our attention to what has been held by Hon'ble Supreme Court in case of Chebrolu Leela Prasad Rao and others vrs. State of A.P. and others (Civil Appeal No. 3609/2002) decided on 22.04.2020. The Hon'ble Apex Court has laid down that while exercising power under Paragraph 5(1) of Schedule V of the Constitution, what is expected is not formulation of new law, but declaring the ::: Uploaded on - 22/12/2020 ::: Downloaded on - 10/02/2021 14:25:26 ::: 3 wp3077.20.odt application of the existing law to certain areas or removing certain areas from the application of law. It is pertinent to note here that for issuing the impugned notification, the power under sub-para (1) of Paragraph 5 of Fifth Schedule to the Constitution has been exercised by the Hon'ble Governor of Maharashtra. In this regard, it is necessary to consider what has been held by the Supreme Court in the said case of Chebrolu Leela Prasad Rao. The relevant observations of the Apex Court appearing in para 51 of the judgment are reproduced below;
"51. We are of the opinion that the Governor's power to make new law is not available in view of the clear language of Para 5(1), Fifth Schedule does not recognise or confer such power, but only power is not to apply the law or to apply it with exceptions or modifications. Thus, notification is ultra vires to Para 5(1) of Scheduled V of the Constitution"
In the present case, in exercise of power under Paragraph 5(1) of Fifth Schedule to the Constitution, which is about issuance of a declaration to apply the law or to apply it with exceptions or modifications, the Act of 2006 appears to be amended.
At this stage, learned Addl.G.P. has also taken recourse to the provision made in Article 361 of the Constitution of India granting protection to the Governor, in order to support his argument that no interim order be passed in the matter.
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We have made detailed observations
regarding the prima facie impression created by the impugned notifications. But, as the learned Advocate General would like to address the Court, by way of last chance, the opportunity is given to the State to make its stand clear.
Stand over to 04.01.2021.
JUDGE JUDGE
Rvjalit
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