Orissa High Court
Birua Oram & Others vs State Of Odisha & Others .... Opposite ... on 22 April, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.1201 of 2015
Birua Oram & others .... Petitioners
Mr. Naresh Chandra Jena, Advocate
-Versus-
State of Odisha & others .... Opposite Parties
Ms. Biswabara Dash, ASC
Mr. Pabitra Kumar Nayak, Advocate
(O.P. No.3)
And
W.P.(C) No. 1202 of 2015
Ramnath Toppo and others .... Petitioners
Mr. Naresh Chandra Jena, Advocate
-Versus-
State of Odisha & others .... Opposite Parties
Ms. Biswabara Dash, ASC
Mr. Pabitra Kumar Nayak, Advocate
(O.P. No.3)
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING: 06.01.2026
DATE OF JUDGMENT:22.04.2026
1.Both the writ petitions are disposed of by the following judgment since a common cause of action is involved.
Page 1 of 262. Instant writ petitions are filed by the petitioners assailing the impugned notifications under Annexures-4, 5 & 6 series and also Annexure-7 series and to declare it as unconstitutional and to issue any other order/orders, writ/writs and direction/directions of this Court as deemed just and proper on the grounds stated.
2.1. In fact, the petitioners filed the writ petitions to quash the notifications under Annexures-4, 5 & 6 series, whereby, the State Government amalgamated the following villages, namely, Jagda of Jagda Gram Panchayat, Jhartarang, Brahmani Tarang, Sana Brahmani Tarang and Gopa Palli of Jhartarang Gram Panchayat situate under the Schedule Area of Sundargarh district with the Rourkela Municipal Corporation and duly notified it in Orissa Gazette as illegal, hence, to be struck down for having violated the provisions of Article 243-ZC of the Constitution of India besides the Panchayats (Extension to the Scheduled Areas) Act, 1996 (in short „the PESA‟) and the Forest Rights Act, 2006.
2.2. As per the pleadings on record, according to the petitioners, Article 243-ZC of the Constitution of India stipulates that the Parliament has the authority to extend the provisions of Part IX-A thereof which deals with the Municipalities to the Scheduled Areas and since the notifications issued by the State Government are not in conformity with the provisions of the Constitution of India, they are liable to be quashed. It is further pleaded that the petitioners are the residents of the above named villages and Page 2 of 26 the entire district is a Scheduled Area so declared by the President of India as per Article 244(1) of the Constitution of India read with Clause 6 of Schedule-V. It is pleaded on record that the Rourkela Municipality was created in the year 1956 by a notification issued by opposite party No.1 and subsequently, it was declared as a Municipal Corporation in 2013 and, thereafter, opposite party No.2 by Gazette Notification dated 15th November, 2013 proposed to specify certain areas beyond the Rourkela Municipality to include it in the Municipal Corporation and in the said notification, the villages were identified for being included therein. In response to the notification as per Annexure-1, resolutions were passed in Gram Sabhas held objecting the inclusion of the villages in the Rourkela Municipal Corporation and it was reduced to writing and submitted to the Govt. As per the petitioners, responding to Annexure-1, a meeting was held on the date fixed and ultimately with the resolutions dated 4th December, 2013 and 12th December, 2013, such inclusion was opposed and it was sent to the Hon‟ble Governor of Odisha through the Collector, Sundargarh with the representations dated 11 th December, 2013 and 13th December, 2013 in respect of the villages proposed to be included vide Annexure-1. Apart from the objection, as per Annexure-2 series, after the resolutions passed in Special Gram Sabha meetings held at Jagda and Jharataranga GPs, representations were submitted by the local M.L.A., M.P. and other functionaries of the GPs with Page 3 of 26 the objections to include the villages and the proposal to make it a part of the Rourkela Municipal Corporation.
2.3. Taking into consideration the objections as per Annexure-3 series and resolutions of the GPs vide Annexure-2 series, opposite party No.2 vide notification dated 14th November, 2014 excluded some of the villages but included village Jagda of Jagda GP and other villages, namely, Jhartarang, Brahmani Tarang, Sana Brahmani Tarang and Gopa Palli of Jhartarang GP in the Rourkela Municipal Corporation as a part of larger urban area with the approval of Hon‟ble Governor of Odisha in view of Annexure-4. After Annexure-4, opposite party No.2 issued a notification dated 14th November, 2014 and constituted the Rourkela Municipal Corporation including the areas specified therein. Pursuant to the notifications as per Annexures-4 & 5, it was followed by the notification dated 14th November, 2014 vide Annexure-6 series.
2.4. According to the petitioners, the notifications under Annexures-4, 5 & 6 series are illegal and in gross violation of the constitutional provisions and in particular, Article 243-ZC and has seriously affected the rights given to the inhabitants of the Scheduled Areas under the PESA and The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and all the more when, the same has not been accomplished by a Parliamentary law and therefore, it shall have to be set at naught and declared unconstitutional.
Page 4 of 263. Referring to the counter affidavit filed through opposite party Nos.1 & 2, the response of the opposite parties is that Article 244 of the Constitution of India deals with administration of Scheduled Areas and Tribal Areas in accordance with the Fifth Schedule of the Constitution and in so far as Part IX-A of the Constitution is concerned, it is related to the Municipalities introduced by the Constitution (74th Amendment) Act, 1992 with effect from 1st June, 1993, whereafter, Article 243Q was incorporated to provide for constitution of Municipalities and Article 243-ZC with the provision that Part IX-A to apply to such areas. It is pleaded that Sundargarh district is a Scheduled Area within which the Rourkela Municipality situated and in so far as Part IX-A of the Constitution of India is concerned, it was inserted with effect from 1st June, 1993 and has not been extended to the district, instead, it is administered in accordance with the provisions of Fifth Schedule of the Constitution of India.
3.1. The further pleading is that in exercise of power under Clause 5(1) of Part-B of the Fifth Schedule of the Constitution, the Hon‟ble Governor of Odisha issued a notification vide S.R.O. No.743 dated 14th August, 1995 deleting/omitting sub-section (6) of Section (1) of the Orissa Municipal Act, 1950, which was introduced by way of Orissa Municipal (Amendment) Act, 1994 and as a result of such notification, the provisions of the Orissa Municipal Act, 1950 were extended to the Scheduled Areas of the State and admittedly, as on date, the provisions of Part IX-A of Page 5 of 26 the Constitution are not applicable to the district which is a Scheduled Area and the Orissa Municipal Act, 1950 and the provisions thereof have been made applicable to such areas with effect from 31st May, 1994.
3.2. It is pleaded further that the Hon‟ble Governor of Odisha in exercise of powers under the Fifth Schedule of the Constitution issued notification dated 7th August, 1996 (S.R.O. No.509) directing that the amendments made by the Orissa Municipal (Amendment) Act, 1995 (Orissa Act 19 of 1995) except Clause (b) of Section 2, Clauses (i) & (ii) of Section 5 and Clause (ii) of Section 6 of the Orissa Municipal Act, 1950 shall be deemed to have been applied to the Scheduled Areas of the State with effect from 19 th October, 1995 and that the provisions of the Orissa Municipal Act, 1950 are not inconsistent with the provisions of Part IX-A of the Constitution, rather, it is in consonance thereto and, hence, the notifications as per Annexures-4, 5 & 6 series are in accordance with law.
3.3. The introduction of Part IX-A led to necessary amendment to the provisions of the Orissa Municipal Act for the purpose of strengthening the Municipalities giving effective and adequate representation to the Scheduled Castes and Scheduled Tribes and women in the Scheduled Areas of the State and therefore, it was considered expedient to apply the provisions of the Orissa Municipal Act, 1950 as amended to the Scheduled Areas of the State and accordingly, in exercise of powers conferred by Clause 5(1) Page 6 of 26 of Part-B of the Fifth Schedule of the Constitution of India, the notification dated 14th August, 1995 was issued declaring thereby that any action taken or things done by the State Government under the Orissa Municipal Act, 1950 so applied to the Scheduled Areas of the State shall be deemed to have been validly taken or done and not only that, the Hon‟ble Governor of Odisha vide notification dated 7th August, 1996 directed that the amendment made by the Orissa Municipal (Amendment) Act, 1995 (Orissa Act 19 of 1995) except Clause (b) of Section 2, Clauses (i) & (ii) of Section 5 and Clause (ii) of Section 6 of the Orissa Municipal Act, 1950 to apply to the Scheduled Areas of the State with effect from 19th October, 1995 and therefore, the plea of the petitioners that there is violation of Article 243- ZC of the Constitution and the provisions of the PESA and the Forest Rights Act, 2006 are devoid of merit and hence, liable to be rejected.
3.4. Lastly, it is pleaded that even by notification dated 15th November, 2013, objections/suggestions were received from the concerned GPs within the stipulated period of time by the Housing and Urban Development Department, Govt. of Odisha and the same were forwarded to the District Magistrate, Sundargarh for examination and to submit a report and only after receiving the report dated 5 th February, 2014 from him on 6th February, 2014 and discussions held with the District Administration, Executive Officer, Rourkela Municipality and the representatives of Rourkela Steel Plant (SAIL) and other stakeholders, it was finally Page 7 of 26 resolved to include the named villages in the preliminary notification dated 15th November, 2013 excluding some of the villages for having limited urban characteristics. It is also pleaded that a number of small and medium scale industries have been set up in the villages included under Jagda G.P. situate in close proximity to the industrial zone and besides that the other villagers of Jhartarang G.P. were shown to have acquired urban characteristics due to availability of major educational institutions and business centres. Considering the above facts and having regard to the objections/suggestions received and the report of the District Magistrate, Sundargarh, the State Government in Housing and Urban Development Department after obtaining approval of Hon‟ble Governor of Odisha in exercise of powers under Section 3 of the Orissa Municipal Corporation Act, 2003 notified to include the villages as a part of larger urban area and accordingly constituted the Rourkela Municipal Corporation vide Annexures-4 & 5, hence, such decision is in larger public interest and hence, there is no any violation of the provisions of Article 243-ZC of the Constitution of India, PESA and the provisions of the Forest Rights Act, 2006 as alleged by the petitioners.
4. In response to the above, the petitioners filed rejoinder affidavit with the pleading on record that the notifications issued by the State Government with the approval of Hon‟ble Governor of Odisha are in violation constitutional mandate, hence, are liable to be quashed.
Page 8 of 265. Perused the counter affidavit of opposite party No.3.
6. Heard Mr. Jena, learned counsel for the petitioners, Ms. Dash, learned ASC for the State and Mr. Nayak, learned counsel for opposite party No.3.
7. Mr. Jena, learned counsel for the petitioner would submit that while 74th amendment of the Constitution was made and the Legislature was conscious of the Fifth Schedule of the Constitution and inserted Article 243-ZC which stipulates that only Parliament has the power to make law to extend the provisions of Part IX-A to the Scheduled Areas. The question posed is whether the Hon‟ble Governor of Odisha did have the authority to issue notification in 1995 to extend the provisions of the Orissa Municipal Act, 1950 to the Scheduled Areas after 74th amendment of the Constitution read with Fifth Schedule and the submission Mr. Jena, learned counsel is that on a reading of the aforesaid provisions, it is crystal clear that the notification vide Annexure-A/2 (Annexure-7 series to the writ petition) to the counter affidavit was notified after the 74th amendment of the Constitution and the law is well settled that basic structure of the Constitution cannot be violated and infringed upon. Mr. Jena, learned counsel submits that the Hon‟ble Governor of Odisha is empowered under Article 244 of the Constitution read with Fifth Schedule thereof for better administration of the Scheduled Area, but it cannot override Article 243 ZC of the Constitution. Referring to a judgment of the Apex Court in Union of Page 9 of 26 India and others Vrs. Rakesh Kumar & others (2010) 4 SCC 50, it is submitted by Mr. Jena, learned counsel that the Scheduled Areas do have a special status and unless there is Parliamentary intervention, the provisions of Part IX-A of the Constitution of India cannot be extended as thereby the intention of the Legislature including Fifth Schedule for a separate administrative scheme for the Scheduled Areas (special needs of the Tribal communities) would be frustrated. According to Mr. Jena, learned counsel even assuming for the sake of argument that Annexure-7 series is valid, Article 243 ZC would become redundant and therefore, the contention of the opposite parties on any such ground is totally misconceived. It is reiterated by Mr. Jena, learned counsel that Article 243-ZC(1) of the Constitution stipulated that Part IX-A shall also apply to the Scheduled Areas and it can only be extended by a law introduced by the Parliament and therefore, the Hon‟ble Governor of Odisha did not possess the authority to issue the notification vide Annexure-7 series after 74th amendment of the Constitution of India which has been given effect to from 1 st June, 1993. It is contended that the Hon‟ble Governor of the State has no jurisdiction to include any such villages of the Scheduled Areas in the Rourkela Municipal Corporation vide Annexure-6 series and therefore, it has to be declared as unconstitutional.
7.1. The contention Mr. Jena, learned counsel is that Section 3(1) of the Orissa Municipal Corporation Act stipulates that the Governor having regard to the population in urban area Page 10 of 26 with other conditions may include such areas to be a part of the larger urban area including the same in Municipal Corporation but no part of Scheduled Area. Referring to Article 243-Q of the Constitution of India, the further contention is that the Nagar Panchayat, Municipalities or Municipal Corporation wherein some areas may be included but it is not to include any area from the Scheduled Areas and therefore, the decision of the Government vide Annexures-5 & 6 is contrary to law. The submission of Mr. Jena, learned counsel is that Annexures-5 & 6 are Executive decisions and it cannot take away the rights conferred to the Scheduled Tribes of the Scheduled Area conferred under the PESA by the Parliament and also the Forest Rights Act. As regards the decision justifying the inclusion, it is submitted that out of 64 objections, nearly 51 out of the same, clearly opposed the inclusion of the villages in the Rourkela Municipal Corporation and the suggestion with a request was only to include some of the areas of the Corporation situate inside the Rourkela Municipality and the area acquired for the SAIL. The inclusion, if any, with the procedure followed towards formation of the Rourkela Municipal Corporation by the opposite parties is nothing but a colourable exercise of power and in gross violation of the constitutional rights of the petitioners.
7.2. It is claimed that the suggestions and decision by the District Magistrate, Sundargarh on the objections received have been ignored and instead opposite party No.2 proposed inclusion of seven villages of three GPs. into the Municipal Page 11 of 26 Corporation though finally decided to have five villages from two GPs, as made to reveal from the record itself. Further, referring to Section 4 of the PESA, it is contended by Mr. Jena, learned counsel that the Parliament has restricted the powers of the State Government to make any law under Part IX-A of the Constitution of India dealing with Panchayats inconsistent thereto and hence, any such inclusion of the villages of the Scheduled Areas in the Rourkela Municipal Corporation has taken away the rights given thereunder and that too in absence of any law by the Parliament. It is lastly contended that after 74th amendment of the Constitution, the Municipal Extension to Scheduled Area (MESA) Bill was sought to be introduced to take care of the rights of the tribals but it could not take the shape of a law and therefore, the fact remains that when there is no enactment of the Parliament till date to extend Part IX-A of the Constitution to the Scheduled Areas, any such amalgamation of villages in the Rourkela Municipal Corporation shall be unconstitutional.
8. On the other hand, Ms. Dash, learned ASC for the State would submit that the objections/suggestions were invited from the inhabitants of the proposed area and it was followed by the notifications since the villages do have small and medium scale industries situate in close proximity to the industrial zone having acquired urban characteristics, the State Government in Housing and Urban Development Department after obtaining permission from Hon‟ble Governor of Odisha in exercise of powers under Section 3 Page 12 of 26 of the Orissa Municipal Corporation Act, 2003 specified the said area as larger urban area and thereafter, Rourkela Municipal Corporation was constituted. The further contention is that such inclusion of the villages in the Rourkela Municipal Corporation is in larger public interest and as such, no illegality has been committed nor there is any violation of the provisions of Article 243-ZC, PESA and Forest Rights Act, 2006. Ms. Dash, learned ASC for the State would further submit that after 74th amendment, Orissa Municipal Act was introduced for the purpose of strengthening the Municipalities for giving effective and adequate representation to the Scheduled Castes, Scheduled Tribes and women in the Scheduled Areas of the State. Accordingly, in exercise of powers conferred under the Fifth Schedule, Hon‟ble the Governor of Odisha by notification dated 14th August, 1995 declared that the Orissa Municipal Act, 1950 shall be deemed to have been validly applicable to all the actions and things done thereunder and not only that, excluded some of the provisions by the Orissa Municipal Act vide Orissa Act 19 of 1995 applicable to the Scheduled Areas of the State with effect from 19th October, 1995. It is contended that though Sundargarh District is a Scheduled Area but the provisions of Part IX-A of the Constitution have not been made applicable within which the Rourkela Municipal Corporation is situated. But, in so far as the notification of Annexures-4, 5 & 6 series are concerned, the villages in questions are under the Panchayats and it is needless to mention that as per Section Page 13 of 26 148(4) of the Orissa Gram Panchayats Act, 1964, the whole area within a Grama is included in a Municipality or a Notified Area, the Gramsasan shall cease to operate and the Gram Panchayat constituted therefor shall stand abolished. It is contended that after careful consideration of the proposal of the District Magistrate, Sundargarh, the Government in Housing & Urban Development Department keeping in view the interest of the Rourkela Municipal Corporation in particular and the entire State in general, decided to constitute the Corporation and accordingly, included the villages within it and since such a decision has been taken with proper evaluation and approval of Hon‟ble Governor of Odisha, the inclusion of the area within the limits of the Rourkela Municipal Corporation is perfectly justified. The submission is that the Rourkela Municipal Corporation includes Balliguda and Champua NACs, which are also located within the Scheduled Areas of the State. At present, 28 Urban Local Bodies including Rourkela Municipal Corporation are situated in the Scheduled Areas of the State and therefore, the constitution of Rourkela Municipal Corporation including the proposed villages is within the four corners of the Constitution of India and therefore, according to Ms. Dash, learned ASC, the challenge to the same by the petitioners is untenable and, hence, the writ petitions are liable to be dismissed in limine.
9. Recorded the submission of Mr. Nayak, learned counsel for opposite party No.3, according to whom, some persons with vested interest are opposing the inclusion of the Page 14 of 26 villages in the Rourkela Municipal Corporation, which is necessary for the larger public interest and as such, there is no illegality in the issuance of the notifications by the State. It is contended that in exercise of powers under the 5 th Schedule of the Constitution, the Hon‟ble Governor issued notifications and deleted some of the provisions of the Orissa Municipal Act, 1950 while extending it to the Scheduled Areas of the State and it is reiterated that the provisions of Part IX-A of the Constitution are not applicable to the district which is a Scheduled Area, but the Orissa Municipal Act, 1950 is applied to administer the same which is in accordance with law followed by due procedure upon receiving the objections/suggestions from the inhabitants of the locality and therefore, any such decision of the State Government should not be interfered with at the behest of the petitioners.
10. In course of hearing, Mr. Jena, learned counsel for the petitioners referred to the decision in Rakesh Kumar (supra) to contend that a special treatment shall have to be given to the Scheduled Areas and hence, inclusion of the proposed area in the Municipal Corporation defeats the very purpose for which it is created especially considering the interest of the Scheduled Tribes and inhabitants of such locality, who are in disadvantaged position and needs protection under Schedule-V. In the above decision, the Apex Court while dealing with the principles of reservation in different employments and for admission in the educational institutions observed that it cannot be readily Page 15 of 26 applied in respect of any such policy made by the Legislature to protect the interest of the Scheduled Tribes by assuring them majority in reservation as well as occupancy of their present position in the Panchayats located in the Scheduled areas since such policy broadly corresponds to the past practice wherein the Scheduled Areas administered as per the provision of Schedule-V of the Constitution and the same was expected to adhere to the advice of Tribes Advisory Councils and while extending the Panchayati Raj system to such area, the Scheduled Tribes should not be put in a relatively disadvantaged position. For the Scheduled Areas enjoys a different status and it is to ensure that the inhabitants of the same are differently treated in view of peculiar conditions of such areas considering the policy of the Government with 100% reservation in the appointments to the post of Chairperson especially in the Scheduled Areas, the Apex Court in the above decision held and concluded that the same is permissible and it should be exclusively meant for Scheduled Tribes only and dismissed the challenge to the same.
11. A decision of the Apex Court in Sundargarh Zilla Adivasi Advocates Association and others Vrs. State of Odisha and others (2013) 14 SCC 217 is cited at the Bar to contend that extension of the Orissa Municipal Corporation Act to the Scheduled Areas is not unconstitutional. In the above decision, it has been observed by the Apex Court that no any provision of the Orissa Municipal Act was shown to be inconsistent in Part-IXA in terms of Article 243-ZF of Page 16 of 26 the Constitution of India and therefore, the contention is without any foundation or basis but left the question open since Part-IXA has not been made applicable to the Scheduled Area. The objective achieved by the notification issued in 1995 with the amendments to the Orissa Municipal Act have also been concluded by the Apex Court with the observation that Article 243-ZC makes it clear that Part IX- A does not ipso facto apply to Scheduled Areas and for that Parliament may by law extend its provisions to a Scheduled Area subject to exceptions and modifications. It has been held therein that Article 243-ZF stipulates that any existing law relating to the Municipalities shall remain in force if inconsistent with Part IX-A, however, such provision unless amended within the period stipulated clearly presupposed that any such law even if it is inconsistent was to enable necessary amendments through it to make it consonance therewith.
12. A similar question was considered by the Rajasthan High Court in a batch of matters with the lead case in Ankit Kumar Meena and another Vrs. State of Rajasthan and others (D.B. Civil Writ Petition No. 3118 of 2025) decided on 5th January, 2026, wherein, it was dealing with whether the Scheduled Area notified under the Fifth Schedule may be included within the municipal limits under the Rajasthan Municipal Act, 2009 and concluded therein that the special constitutional regime governing the Scheduled Areas regulates the manner and limit of the governance but does not suspend the operation of validly enacted the State law in Page 17 of 26 absence of a constitutional sanctioned exclusion and, hence, upheld the notification whereby a proposed area was included within the limits of Udayapur Municipal Corporation; Article 243-ZC restrains the automatic application of the municipal constitutional framework contained in Part-IX A and Article 244(1) read with Fifth Schedule supplies the controlling regulatory mechanism for all legislative and executive action in Scheduled Areas and together it ensures that governance of Scheduled Areas remains constitutionally differentiated, carefully calibrated and normatively distinct from ordinary territorial administration and, hence, Article 241, 244(1), 243 ZC and the Fifth Schedule of the Constitution must have to be read harmoniously; inclusion of an area within the municipal limits does not denotify or dilute its constitutional status as a Scheduled Area which flows exclusively from a Presidential notification under the Fifth Schedule and cannot be altered by executive or statutory re-classification; but at the same time, expressed serious concern over the absence of parliamentary enactment and the legislative process being incomplete with the introduction of the MESA and, therefore, it has resulted in a constitutional vacuum and ultimately concluded that in absence of exceptional or modificatory notification issued by the Governor under the Fifth Schedule any such inclusion of the proposed area within the municipal limits is not unconstitutional per se and does not stand vitiated merely on the ground that such territories are Scheduled Areas, but at the same time, the Page 18 of 26 municipal inclusion does not extend constitutional status under Article 244(1) as all protections, obligations and supervisory mechanisms flowing therefrom including the role of the Governor, the Tribes Advisory Council and the developmental mandates under Articles 46 and 275(1) continue to operate with full force and highlight upon the governance framework in Municipalized Scheduled Areas in absence of a Parliamentary enactment with regard to municipal function related to urban infrastructure, civic services, taxation, sanitation, public health, transport etc. under the municipal law in juxtaposition to the constitutional protection of the Scheduled Areas.
13. Article 243-ZC of Part-IX A of the Constitution of India clearly indicates that it shall not be applicable to the Scheduled Areas and may be extended only with the parliamentary intervention. In the case at hand, Part-IX A has not been made applicable to the Scheduled Areas of the State. It is also a fact that no similar law like PESA is in place to govern the Scheduled Areas to bring it within the sweep of the Orissa Municipal Corporation Act. Though a Bill was introduced in the year 2001 to extend the provisions of the Municipalities to the Scheduled Areas similar to the PESA, but it could not become a law. But the Court is inclined to accept the view and the conclusion reached at by the Rajasthan High Court in Ankit Kumar Meena (supra) which is to the effect that there has been no notification issued by the Governor as per Fifth Schedule to extend or modify the operation of the Orissa Municipal Page 19 of 26 Corporation to the Scheduled Areas and that mere constitutional status of an area as a Scheduled Area by itself creates an absolute constitutional embargo on the application of the State legislation nor does it divest the State Government from its statutory authority to reorganize the territories of the Corporation.
14. The Court is of the view that the Orissa Municipal Act confers power upon the State Government to create, include and exclude or otherwise alter the Municipal areas and the constitutional scheme under Article 244(1) read with Fifth Schedule does not place the Scheduled Areas outside the reach of any such State legislation. Rather, the Fifth Schedule itself creates a mechanism whereby laws of the State or any such legislation enacted by the Parliament shall continue to operate in a Schedule Area unless and until they are excluded or modified in the manner expressly provided thereunder. In other words, the Court is of the considered view that the power conferred upon the Governor under the Fifth Schedule is exclusionary in character. In the case at hand, necessary amendment was introduced in the Orissa Municipal Act, 1950 in exercise of powers under Clause-1 of Part-V of the Fifth Schedule of the Constitution followed by notification issued in the year 1995 deleting some of the provisions so as to apply the same to the Scheduled Areas of the State with necessary modification. Furthermore, the Court does not find any provision of the Orissa Municipal Act, 1950 to be inconsistent with any part of the Constitution of India.
Page 20 of 2615. At this juncture, it would be apposite to make a mention to the authoritative law by the Apex Court in South Eastern Coalfields Ltd. Vrs. State of Madhya Pradesh & others (2024) 20 SCC 660 with the relevant extract being reproduced below:
11. The Fifth Schedule contains provisions for the administration and control of Scheduled Areas and Scheduled Tribes. Para 3 of the Fifth Schedule, inter alia, provides that the Governor of each State having Scheduled Areas shall annually or whenever so required by the President make a report to the President regarding the administration of the Scheduled Areas in the State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.
12. Para 5 of the Fifth Schedule is in the following terms:
"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 a 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-para may be given so as to have retrospective effect.
(2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may-
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.
(3) In making any such regulation as is referred to in sub- para (2) of this Para, the Governor may repeal or amend Page 21 of 26 any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.
(4) All regulations made under this Para shall be submitted forthwith to the President and, until assented to by him, shall have no effect.
(5) No regulation shall be made under this Para unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council."
13. Paragraph 5 of the Fifth Schedule commences with a non obstante provision. It empowers the Governor to direct that any Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or a part of it in the State. The second component of clause (1) of Paragraph 5 empowers the Governor to direct that an Act of Parliament or of the State Legislature shall apply to a Scheduled Area or any part in the State subject to such exceptions and modifications as he may specify in the notification.
14. The High Court in the present case has observed that the appellant did not produce any notification indicating that the statutes in question would not apply to the Scheduled Areas in the State of Madhya Pradesh or that their provisions would apply with exceptions and modifications disabling the power of the municipality to levy a tax. Even before this Court, no such notification has been produced. The consequence of paragraph 5(1) of the Fifth Schedule is that it enables the Governor to direct either that a parliamentary or state law shall not apply to a Scheduled Area in the State or that it would apply subject to exceptions and modifications. Therefore, unless a notification has been issued by the Governor indicating that (I) a parliamentary or state law shall have no application to the Scheduled Area; or (ii) the parliamentary or state legislation would apply subject to exceptions or modifications, there would be no hindrance in the application of the law to the State."
16. The Apex Court in Chebrolu Leela Prasad Rao and others Vrs. State of A.P. and others (2021) 11 SCC 401 Page 22 of 26 clarified that the Governor‟s power under Clause 5(1) does not confer independent legislative authority but it merely enables exclusion or modification of existing law in order to protect tribal interests, without disturbing legislative certainty and concluded that any such power to make a new law is not available but to ensure its application with exceptions or modifications. It would be profitable to reproduce the relevant extract of the decision in Adivasis for Social & Human Rights Action Vrs. Union of India & others 2010 SCC OnLine Ori 146 and the same is reproduced herein below:
"15. Coming to the plea of the petitioner that any Act of the Parliament or the State Legislature has to be made applicable to the Scheduled Areas by public notification to be issued by the Governor of State, under Part „B‟ of the Fifth Schedule to the Constitution, in order to make the same operative in the Scheduled Area, the same is equally fallacious and misconceived and deserves outright rejection. What is provided under sub-clause (1) of Clause 5 of the Fifth Schedule is that the Governor is empowered, notwithstanding anything in the Constitution, to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions or modifications, as the Governor may specify in the notification. Hence, only if any Central or State Act is not to be applied to a Scheduled Area or is to be applied to a Scheduled Area, subject to such exceptions and modification, the Governor of the State may specify the same in the notification. Hence, by necessary implication, it cannot be said that all Acts of the Parliament or the State Legislature can only apply to a Scheduled Area, if there is a notification to that effect by the Governor of the State. See-Ram Kripal Bhagat v. State of Bihar, AIR 1970 SC 951."Page 23 of 26
17. In view of the decision (supra) and the conclusion by the Court that merely a notification of an area as a Scheduled Area does not create any absolute constitutional embargo on the application of State legislation otherwise as held by the Rajasthan High Court in Ankit Kumar Meena (supra) that any such interpretation would render Clause-5(1) Part-V of the Fifth Schedule otiose and in that case, no any notification was produced to show that the Governor issued any notification excluding or modifying the application of the Rajasthan Municipalities Act, 2009 in respect of the village proposed to be included and hence, it was held that in absence of constitutional intervention, the statutory regime enacted under the State law continues to operate by its own force.
18. No doubt Part-IX A of the Constitution cannot be made applicable to the Schedule Area unless there is parliamentary law. At the same time, the State law may be extended to the Schedule area in the manner contemplated in Fifth Schedule of the Constitution and for the said purpose, Section 3 of the Orissa Municipal Corporation Act has been invoked. Before any such area proposed to be included in Rourkela Municipal Corporation in view of the constitutional mandate and the provisions of the Orissa Municipal Corporation Act, 2003, objections/suggestions invited from the local inhabitants and it was received and forwarded to the District Magistrate, Sundargarh for opinion. It is made to understand that upon receiving the report, the Government in Housing & Urban Development Page 24 of 26 Department examined the proposal and ultimately, keeping in view the interest of the Corporation decided to issue notifications vide Annexures-4, 5 & 6 series. Not only that necessary amendment to the Orissa Municipal Act, 1950 was introduced vide Orissa Act, 1990 subsequently to 74th Amendment to the Constitution extending operation of the provisions of the State law to the Schedule Area with effect from 19th October, 1995. In fact, the Court finds that some of the villages were excluded after the notification and upon considering the objections/suggestions of the local inhabitants even some of the suggestions received in favour of the inclusion of the proposed villages in the Schedule Area. The reason for the inclusion of the proposed area is on account of it having acquired the urban characteristics over a period of time. It has been revealed from the record that small and medium scale industries found to have been set up in the proposed area. The Court does not find any illegality committed as a result of the proposed area administered as a part of the Rourkela Municipal Corporation. It is reiterated that application of Part-IX of the Constitution of the Schedule Area needs a parliamentary law, but at the same time, the State law or a legislation of the Parliament in force may be extended to any such Schedule Area for its administration unless there is any exercise of power in terms of Fifth Schedule with exclusion followed by a modification. For the purpose of administration of a Schedule Area under a State law, it cannot be opposed unless there is a notification in Clause-5A of the Fifth Page 25 of 26 Schedule either excluding or modifying the application of the same to any such Schedule Area. Having considered the constitutional provisions, the Court ultimately reaches at a conclusion that the notifications as per Annexures-4, 5 & 6 series are not to be declared unconstitutional, but there is a need of balance to be struck in absence of any such law similar to PESA to ensure that there is no erosion of the distinct protection meant for the Schedule Area while giving effect to the urban administration, inasmuch as, an equilibrium shall have to be maintained for the tribal population and evolving governance as rightly concluded by the Rajasthan High Court in Ankit Kumar Meena (supra) observing therein that its integration shall have to be without assimilation and development bereft of dispossession.
19. Accordingly, it is ordered.
20. In the result, the writ petitions stand dismissed.
(R.K. Pattanaik) Judge Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 27-Apr-2026 16:01:11 Page 26 of 26