Jharkhand High Court
Md.Ashique Ahamed vs Union Of India & Ors. on 10 February, 2016
Equivalent citations: AIR 2017 JHARKHAND 1, 2016 (4) AJR 325, (2016) 2 JLJR 124, (2016) 3 JCR 68 (JHA)
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (PIL) No. 689 of 2010
with
W.P. (PIL) No. 1657 of 2010
with
W.P. (PIL) No. 2984 of 2010
.......
Md. Ashique Ahamed Son of Md. Squkat Ali, P.O. Chuttu, P.O-Neori
Vikas, P.S.- Sadar (Mesra O.P) Block-Kankey, Dist-Ranchi
..... ..... Petitioner (in W.P. (PIL) No. 689 of 2010)
Upendra Nath Mahto, son of Jaidev Mahto, resident of Village-Kokadih,
P.O. Chirudih, P.S. Tamar, District-Ranchi.
..... ..... Petitioner (in W.P. (PIL) No. 1657 of 2010)
Col. Lal Jyotindra Dev S/o Late Bechu Narayan Deo Dumardaga, P.O.
Booti, Dist-Ranchi.
..... ..... Petitioner (in W.P. (PIL) No. 2984 of 2010)
Versus
1. Union of India through Secretary, Ministry of Parliamentary Affairs,
Government of India, Shastri Bhawan, P.O. & P.S. Central Secretariat
2. The Secretary, Ministry of Parliamentary Affairs, Government of India,
Shastri Bhawan, P.O. & P.S. Central Secretariat, New Delhi.
3. The Secretary, Ministry of Law and Justice, Government of India, Shastri
Bhawan, P.O. & P.S. Central Secretariat, New Delhi.
4. The State of Jharkhand, through the Chief Secretary, Project Building,
Dhurwa, Ranchi.
5. The Secretary, Department of Welfare, at Project Building, Government
of Jharkhand at Ranchi.
..... .... Respondent (in W.P. (PIL) No. 689 of 2010)
6. Binod Kispottta
7. Debashish Soren ..... Respondent -intervenor (in W.P. (PIL) No. 689 of 2010)
1. Union of India through Ministry of Tribal Affairs, Government of India,
Sansad Marg, New Delhi-110001.
2. The Secretary, Ministry of Parliamentary Affairs, Government of India,
Sansad Marg, New Delhi-110001.
3. The Secretary, Ministry of Law and Justice, Government of India, Sansad
Marg, New Delhi-110001
4. The State of Jharkhand, through the Chief Secretary, Project Bhawan,
Dhurwa, Ranchi-834004.
5. The Secretary, Ministry of Welfare, Project Bhawan, Dhurwa, Ranchi.
........ Respondents (in W.P. (PIL) No. 1657 of 2010)
6. Shyamlal Hembrom & Ors.
........ Respondent -intervenor (in W.P. (PIL) No. 1657 of 2010)
2
1. Union of India through its Chief Secretary, Central Secretariat, New
Delhi.
2. The Secretary, Ministry of Parliamentary Affairs, Government of India,
Parliament Street, New Delhi.
3. The Secretary, Ministry of Law and Justice, Government of India, Central
Secretariat, New Delhi.
4. The State of Jharkhand, through the Chief Secretary, Project Building,
Dhurwa, Ranchi.
5. The Secretary, Department of Welfare, Government of Jharkhand at
Ranchi, Project Building, P.O. & P.S. Jaganathpur, Ranchi.
..... Respondents (in W.P. (PIL) No. 2984 of 2010)
6. Ram Murmu & Ors.
7. Philmon Toppo
........ Respondent -intervenor (in W.P. (PIL) No. 2984 of 2010)
---------
CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
HON'BLE MR. JUSTICE PRAMATH PATNAIK
----------
For the Petitioners : Mr. Rajiv Kumar & Sardhu Mahto, Adv. (in W.P.
(PIL) No. 689 of 2010)
: Md. S. Anwar, Sr. Adv.& Shivani Verma (in W.P.
(PIL) No. 2984 of 2010)
: Mr. Delip Jerath, Adv. (in W.P. (PIL) No. 1657 of
2010)
For the UOI : Mr. Rajiv Sinha, ASGI.
For the Respondent-State : Mr. Bikash Kumar, J.C. to AAG.
For the Respondent -Intervenor : Mr. Indrajit Sinha, Adv (in W.P. (PIL) No. 689 of
2010)
For the Respondent -Intervenor : Ms. Sweety Topno, Adv (in W.P. (PIL) No. 689 of
2010 and in W.P. (PIL) No.2984 of 2010)
For the Respondent -Intervenor : Mr. Pratik Sen, Adv (in W.P. (PIL) No. 2984 of
2010)
For the Respondent -Intervenor : Mr. Sreeno Garapati, Adv (in W.P. (PIL) No. 1657
of 2010)
-----------
ORDER
CAV on:07th October, 2015 Pronounced on 10 /02/2016
39/10.02.2016Since the relief sought for in all the writ petition (PIL) more or less identical, with the consent of the respective counsels all these Public Interest Litigation are heard analogously and are being disposed of by this common order/judgment.
2. In all these Public Interest Litigation, relief sought for, mainly pertains to redefining and rescheduling of all the Scheduled Area and for declaration of Scheduled Areas (State of Jharkhand) order 2007 ultra vires to the Constitution of India not being consistent with to the legal parameters and other guidelines for the establishment of scheduled areas.
33. The factual matrix as disclosed in the W.P. (PIL) No.689 of 2010, in brief, is that the "Scheduled Area" as enshrined in the guidelines of the annual report of 2002-03 was published by the Ministry of Tribal Affairs, Government of India. The Government of India notified in the Gazette of India, the Scheduled Areas of the Government of Jharkhand in notifying the blocks of the respective districts vide extraordinary Gazette dated 20.02.2003 as averred in the writ application. As per the 2001 census, the population of Scheduled Tribes has been less than 50% in respective blocks/districts as averred in the writ application. As per the contention of the petitioner, the preponderance of population is the constitutional specification for declaring the Scheduled Area, but in spite of all the fact that the populations of the percentage of population being less than 20%, some of the blocks of Pakur district and East Singhbhum have been declared as Scheduled Area. It has been contended by the petitioner that the majority of population of tribals have shifted from tribal to non tribals, since 1950 by declaring the said area as Scheduled Area would frustrate the object and purpose of Article 244 and 5th Schedule of the Constitution of India. A fresh notification dated 11.04.2007 was issued which was published in the Gazette of India whereby the aforesaid notification namely the Scheduled Areas in the State of Jharkhand and Chattishgarh, order 2003. So far it related to State of Jharkhand, was superseded and a fresh order known as "Schedule Area", Jharkhand State, Order 2007 was notified. On this notification/order districts of Ranchi, Lohardaga, Gumla, Simdega, Latehar, East Singhbhum, West Singhbhum, Saraikell-Kharsawan, Sahibganj, Pakur, Jamtara and parts of Palamu, Garhwa and Godda districts as specified in the notification were declared as 'Scheduled Areas'. It has been contended in the supplementary affidavit dated 06.02.2011 filed on behalf of the petitioner that after 2003 notification, no survey has been carried out and there were no empirical data collected by the respondent for converting the non-schedule areas into Scheduled Areas. As per the census of 2001, district wise tribal population in 15 districts, only district of Lohardaga, Gumla, Simdega and East Singhbhum have more than 50% of population and rest 11 districts which has been notified as Schedule Areas has less than 50% tribal population. On chart of district wise tribal population of Jharkhand, as per the census 2001 has been annexed as Annexure-6 to the affidavit. In the writ application also the States of Madhya Pradesh, Rajasthan, Gujarat and Orissa have been cited 4 where the preponderance of population has been taken as the main criteria for declaration of 'Scheduled Area' but in State of Jharkhand Scheduled Area has not been declared as per the guidelines of Ministry of Tribal Affairs, Government of India.
4. In W.P. (PIL) No. 1657 of 2010, the petitioner has inter alia prayed for issuance of writ commanding upon the respondents to redefine the "Schedule Area" on the basis of the population of the people of the locality in the respective districts in the State of Jharkhand following the guidelines of the Central Government and to declare the notification as contained in Annexure-6 and 7 i.e. 11.04.2007, since the same has been brought to existence beyond the Government specification of defining Schedule Areas in the State of Jharkhand overlooking the legal parameter laid down for the purpose and for redefining the 'Schedule Areas' maintaining the theory of preponderance.
5. In W.P. (PIL) No. 2984 of 2010, the petitioner has prayed for direction upon the respondents to conduct the Panchayat election as per law as early as possible only after redefining/re-scheduling of the Scheduled Area as per the guidelines of Central Government, Ministry of Tribal Affairs and for declaration of the Scheduled Areas (State of Jharkhand) order 2007 as contained in Annexure-5 ultra vires of Constitution of India.
6. By virtue of order no.10 dated 10.07.2012, the prayer relating to election of Panchayat has become infructuous and reservation to the post of Chairperson to the Panchayat also become infructuous and the prayer was confined to declaration of Scheduled Areas which are not qualified to be declared as Scheduled Areas.
7. Vide order dated 13.01.2015, I.A. Nos. 5318 of 2014, 5320 of 3014, 6261 of 2014, 1927 of 2010, 5323 of 2014, 5208 of 2014 and 5209 of 2014 for intervention have been allowed in the aforesaid public interest litigations.
8. Before adverting to the contention advanced by the petitioner's counsel, it would be apposite to refer to Article 244(1) of the Constitution of India, which is reproduced herein below :
"244. Administration of Scheduled Areas and Tribal Areas- (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram."5
9. It would be apposite to refer to relevant provision of Fifth Schedule (Part C) of the Constitution of India, which are reproduced herein below:
"6.Scheduled Areas.-(1) In this Constitution, the expression 'Scheduled Areas' means such areas as the President may by order declare to be Scheduled Areas.
(2) The President may at any time by order-
(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;
increase the area of any Scheduled Area in a State after consultation with the Governor of that State;
(b) alter, but only by way of rectification of boundaries, any Scheduled Area;
(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;
(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas, and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order."
10. Learned counsel appearing for the petitioners have submitted with vehemence that the Scheduled Areas in the State of Jharkhand has not followed the theory of preponderance of population within the legal parameters of the Central Government guidelines. Learned counsel further submits that the determination of the Scheduled Area as have been done smacks of non application of judicious mind. The notification dated 11.04.2007 has been issued de hors the norms and specification of Government of India annual report 2002-03, Ministry of Tribal Welfares, Government of India. Learned counsel further submits that the notification in question is unconstitutional and ultra vires since the same has been enacted and has been brought to existence beyond the Government specification of defining 'Scheduled Areas' in the in the State of Jharkhand overlooking the legal parameters laid down for the purpose, and for redefining Scheduled Areas and maintaining the theory of preponderance of 6 population. Learned counsel further submits that the declaration of Scheduled Areas as has been done is outcome of arbitrary, irrational and illegal exercise of power, bereft of parameter of constitutional guidelines without taking into consideration the present position and population of the locality.
11. The legal submissions which have been made on behalf of the petitioners for declaring the notification dated 11.04.2007 being ultra vires was advanced during course of argument, although there was no specific pleading to that effect in the public interest litigation. During course of argument, learned counsels for the petitioners submitted that the mandatory provisions of consultation by the President of India with Governor of Jharkhand as required under the provisions of paragraph 6(2) (d) or 6 (2) (aa) of the Fifth Schedule of the Constitution has not been followed and the requirement of consultation has been given complete go bye and since there has been no whisper in the counter filed by the State or by the Union of India that there has been consultation by the President with the Governor as required by the Constitution. Therefore, the submission has been advanced by the learned counsels for the petitioners that the impugned notification 2007 has been issued on extraneous considerations which are not germane considerations as required by the Constitution. In order to buttress their submission, the learned counsels for the petitioners have referred to the following decisions:
(i) (1997) 4 SCC 193 (Para 72, 103 and 115)
(ii) (1981) SC 87 (Para 29, 30 and 86)
(iii) (1993) 4 SCC 441 (Para 290 and 377)
(iv) AIR 1966 SC 1987 (Para 7)
Learned counsel for the petitioners has submitted that the impugned notification has been issued in a mechanical manner without application of mind and without considering the facts, situation and the relevant factors/criteria between the Order 1977-2007. The position as existing in that order of 1977 has been restored, which is completely arbitrary, mala fide, whimsical, colourable exercise of power and in violation of Article 14 of the Constitution of India, which mandates equality before the law and equal proportion of law and no reason has been arisen for rescinding the order of 2003 either in the notification or in the counter affidavit filed by the Union of India. Learned counsel for the petitioner has advanced his 7 argument on the power of judicial review by referring to 2000(1) SCC 168 (para 9) wherein the Hon'ble Apex Court has held inclusion of caste in the list of backward class cannot be done mechanically and without adequate data nor it can be done for extraneous consideration. Also (1998) 4 SCC 75 (para-12) has been referred, wherein the Hon'ble Apex Court has held that in case the power is exercised arbitrary, mala fide or absolute disregard of Constitution, the Court would certainly intervene.
12. Counter affidavit has been filed on behalf of the respondent nos.4 and 5 controverting the averments made in the writ applications. It has been inter alia submitted in the counter affidavit that most of the points raised in the writ applications are covered by the judgment of the Hon'ble Supreme Court in case of Union of India and Ors Vs. Rakesh Kumar and Ors, reported in (2010) 4 SCC 50. It has been submitted that Article 244(1), read with Fifth Schedule, Part-C, 6(1) deals with provisions of Scheduled Areas. According to Fifth Schedule, Part-C, 6(1), the expression 'Scheduled Areas' means such areas as the President may by order declare to be Scheduled Areas. According to 6(2) of Fifth Schedule, Part-C, the President may at any time by order rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the area which are as to be Scheduled Areas. As such, the State Government's consultation is mandatory so far paragraph-6(2) (d) of Fifth Schedule is concerned. There are other bodies which are being consulted for declaring Scheduled Area constituted under Article 338A i.e. National Commission for Scheduled Tribes. It shall be evident from Annexure-1 of the writ application that to declare a scheduled area, power has been given to the Ministry of Tribal Affairs. According to para 1.2, allocation of subjects to the Ministry of Tribal Affairs deals with the matter related to Scheduled Area. 4.11(g), 4.12, 4.13, 4.14 and 4.15 deals with the provisions how the Scheduled Area is made. So mere reading the guidelines issued by the Ministry of Tribal Affairs, population is not the exclusive criteria to declare an area to be scheduled area by the President. There are host of other factors which are to be considered. Accordingly, scheduled area has been declared according to Fifth Schedule to the Constitution after following the procedure prescribed under the guidelines. It has further been submitted that after Independence, the President of India has made an order known as the Scheduled Area (Part-
8A State) Order 1950 in exercise of the powers conferred by the Paragraph 6(ii) of the Fifth Schedule of Constitution of India. In pursuance of the said order, Ranchi district, Singhbhum district (excluding Dhalbhum subdivision), Sanhal Pargana District (excluding Godda and Deoghar subdivision) and Latehar subdivision of Palamu district of Jharkhand State were declared to be Scheduled Areas, as per Annexure-A to the counter affidavit. Thereafter in the year 1977, the 1950 order was rescinded and replaced by the Scheduled Areas (States of Bihar, Gujrat, Madhya Pradesh and Orissa) Order, 1977. By the said order the areas of Sate of Bihar now falling within the territory of Jharkhand were declared as Scheduled Aras as per Annexure-B to the counter affidavit. After creation of State of Jharkhand, Ministry of Tribal Affairs, Government of Jharkhand vide D.O. letter dated 30.07.2001 sought report from the Government of Jharkhand for declaration of Scheduled Areas in the newly created State of Jharkhand. In pursuance to the above letter report was sent on 06.09.2001 containing a list of 14 areas as evident from Annexure-C to the counter affidavit. On the basis of the report sent by the Government of Jharkhand notification dated 20.02.2003 has been issued by the Government of India, Ministry of Law and Justice pertaining to Scheduled Areas of Chattisgarh, Jharkhand and Madhya Pradesh as evident from Annexure-D to the counter affidavit. In the detailed notification of Government of India certain areas have been left out compared to notification of 1977, therefore, suggestion was made by the Welfare Department, Government of Jharkhand to correct the anomalies/infirmities. Accordingly, Government of India, Law and Justice vide notification dated 11.04.2007 issued fresh notification containing 15 areas which are either district as a whole or part thereof. The suggestions dated 01.10.2003 for correction of the shortcomings in the notification has been annexed as Annexure-E to the counter affidavit. It has further been submitted that the explanation to the Scheduled areas (State of Jharkhand) Order 2007 vide notification dated 11.04.2007, mention that "for the removal of doubts, it is hereby declared that the said areas are the same, by whatever name called, as were notified as Scheduled Area as part of the erstwhile State of Bihar vide order dated 31.12.1977. This amply makes it clear that there has been no alteration/modification in the Scheduled Areas as notified in Order 1977. The increase in the number of district is on account of the reorganization of district and block during the intervening 9 period as is shown in the table a Annexure-F to the counter affidavit. In the backdrop of the aforesaid facts prayer has been made for dismissal of the writ applications (PIL).
13. A counter affidavit has been filed on behalf of Union of India repelling the contentions made in the writ applications (PIL). It has been inter alia submitted that the terms 'Scheduled Area' has been defined in the Constitution as such areas as the President may by order declare to be Scheduled areas. Paragraph 6 of the Fifth Schedule of the Constitution prescribes procedure for scheduling and rescheduling and alteration of the Schedule Areas. In view of the paragraph 6 of the Fifth Schedule of the Constitution, the specification of the Scheduled Areas in relation to particular State/Union territory is by a notified order of President after consultation with the State Government concerned. The Scheduled Areas within the then State of Bihar was originally specified by the Scheduled Area (Part A States) order, 1950 and had been respecified by the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order 1977 dated 31.12.1977 after rescinding the order cited first, so far as they are related to the States of Bihar and Gujarat. After reorganization of the States of Bihar and Madhya Pradesh and creation of State of Jharkhand and Chhatisgarh, in exercise of powers conferred by sub paragraph 2 of paragraph 6 of Fifth Schedule to the Constitution. The President rescinded the Scheduled Areas (State of Bihar, Gujarat, Madhya Pradesh and Orissa) Order 1977 notified on 31.12.1977. In so far it relates to State areas comprised in the State of Chattisgarh, Jharkhand and Madhya Pradesh and in consultation with the Governor of the State concerned and made the Scheduled Areas (State of Chattisgarh, Jharkhand and Madhya Pradesh) Order 2003 dated 20.02.2003. In exercise of the powers conferred by sub- paragraph 2 of paragraph 6 of Fifth Schedule of the Constitution, the President rescinded Scheduled Areas (State of Chattisgarh, Jharkhand and Madhya Pradesh) Order 2003. In so far as it relates to State of Jharkhand in consultation with the Governor of that State, the President made the Scheduled Areas, (State of Jharkhand) Order 2007 notified on 11.04.2007. It was declared that the said areas are the same, by whatever name called, as were notified as Scheduled Areas as parts of erstwhile State of Bihar vide order dated 31.12.1977. It has further been submitted that criteria presently followed for declaring the Schedule Area are preponderance of tribal 10 population, compactness and reasonable size of the area, underdeveloped nature of the area and mark disparity in economic standard of people. These criteria are not spelt in the Constitution of India but have become well established. They embody principles followed in declaring (excluded) and partially excluded size in the Government of India, Act 1935 'Schedule B' of recommendation of the excluded and partially excluded areas, subcommittee of Constitution of Assembly in the Scheduled Areas and Scheduled Tribe Commission, 1961. The specification of the Schedule Areas in relation to particular State/U.T is a notified order of the President after consultation of the State Government concerned. The same procedure will apply while altering, increasing or rescinding any order relating to Scheduled Areas. The Scheduled Areas of Jharkhand State have been notified on the basis of earlier orders and there has been no change in the orders notified as Scheduled areas since there, hence the criteria i.e. preponderance of S.T. population has not been taken into account.
14. After going to the writ applications (PIL) and counter affidavits, broadly following issues emerged out of the pleadings have to be determined:
(i) Whether the decision to declare an area to Scheduled Area has been taken into consideration, the criteria as delineated in the Annual Report, 2002-03 published by Ministry of Tribal Affairs i.e. preponderance of tribal population, compactness and reasonable size of area, available administrative entity such as district, block or taluka, economic backwardness of the area as compared to neighboring areas have been taken into consideration?
(ii) Whether the notification of 2007 in supersession of notification 2003 which has been made as per the provision of Part-C of the Fifth Schedule has taken into effect, the empirical data in the increase in the Scheduled Area for the State of Jharkhand?
(iii) Whether declaring an area, Scheduled Area, interests of majority of the population of non- tribals frustrates the objects and purpose of Article 244 read with Fifth Schedule of the Constitution of India?11
15. A detailed counter affidavit has been filed by one Binod Kispotta- intervenor-respondent giving historical background stating therein that this motivated public interest litigation has been filed to circumvent the provisions of the Panchayat (Extension to the Scheduled Areas) Act 1996 provides Section 4(g) which provides that all the seats of Chairperson at all levels in the Panchayat system shall be reserved for scheduled tribes in the Panchayat system in the Jharkhand Panchayat Raj Act 2001. The issue has already been decided by the Hon'ble Supreme Court in Union of India versus Rakesh Kumar & Others reported in AIR 2010 SC 3244 and the constitutional validity of the Panchayat (Extension to the Scheduled Area) Act, 1996 and the relevant provisions of the Jharkhand Panchayat Raj Act 2001 has been upheld. Therefore, the instant Public Interest Litigation is liable to be dismissed being hit by the principles of constructive res judicata. It has been contended that this Public Interest Litigation has been filed basing on the annual report of the Ministry of Tribal Affairs and annual report prima facie do not have statutory force of law and basing on the said contents of the annual report, the petitioners right cannot be enforced by setting aside the Constitutional Orders issued by the President in exercising the powers conferred on him by the Constitution considering the judgment of the Hon'ble Supreme Court in Gulf Goans Hotels Co. Ltd versus Union of India reported at (2014) 10 SCC 673 wherein it has been upheld that the orders/instructions/guidelines/circulars in absence of any statutory prescription, the publication has to be made through customary recognized official channel i.e. Official Gazette to have binding nature and force of law. In the counter affidavit also the decision of the Full Bench of Patna High Court reported in AIR 1983 PAT 151 (Amarendra Dutta vs. State of Bihar) has been quoted wherein it has been held that paragraph 6 does not impose any limitation or restriction on the power of the President which areas to be included in the Scheduled Areas and which should be left out and the said power is apparently left to the absolute discretion of the President and therefore the decision regarding the areas which are to form scheduled areas is not open to question and to judicial scrutiny. It has further been submitted that the Dhebar Commission suggested the criteria for determining the Scheduled Area should be clearly related to the objectives of the Fifth Schedule. These objectives are:
(1) Protection of the Scheduled Tribes and
12
(2) Raising the level of administration in the Scheduled Area
The Commission after great deliberations has suggested four criteria for declaring new area as Scheduled area:
(a) the preponderance of tribal population
(b) compactness and reasonable size of the area
(c) under-developed nature of the area
(d) marked disparity in the economic standard of the tribals living
in the areas
The Dhebar Commission further recommended that no existing area can be de-scheduled unless the Government, after examination of all the available date, is satisfied that it fulfills a certain standard and has developed economically and educationally and in point of health, communications and services to the limit when it can no longer remain scheduled. Therefore, the contention of the petitioner that existence of tribal majority is the only criteria for declaring an area Scheduled Area under the Fifth Schedule is incorrect, erroneous, unfounded and based on an extremely narrow understanding of the relevant provisions of the Constitution because the Government had in its possession the reports of various Committee, Commissions, Expert Groups, individual studies, research papers, census data and the Government after considering the vision, objects, goals, aims and the intention of the architects of the Constitution behind the provisions of Article 244 and the Fifth Schedule taken a conscious decision while declaring these areas as Scheduled Areas.
16. On the conspectus of the facts as emerged from the pleadings of the writ applications (PIL), counter affidavits and supplementary affidavit and counter affidavits by the intervenor-respondents and arguments advanced by counsel for respective parties including intervenor, the moot question to be determined as to whether the impugned notification dated 11.04.2007 suffers from the vice of unconstitutionality so as to be declared ultra vires, since the same as alleged have been published in the gazette without taking into consideration the norms and specification of the Ministry of Tribal Affairs, Government of India, Annual Report 2002-03.
17. On perusal of the extraordinary Gazette of Ministry of Law and Justice dated 11.04.2007 the same has been published in respect of State of Jharkhand in consultation with the Governor of the State but a declaration has been made that the said areas of the same as were notified as Scheduled 13 Areas as part of the erstwhile State of Bihar vide C.O. 109 (the Scheduled Areas) (the State of Bihar, Gujarat, Madhya Pradesh and Orissa) Order 1977 dated 31.12.1977. Thus, the introductory paragraph of the above notification and with the conjoint reading of its explanation there is no scope of any ambiguity that the said notification was result of lacuna pointed out by the Welfare Department, Government of Jharkhand dated 01.10.2003, Annexure-D to the counter affidavit filed by the State of Jharkhand. Thereby, giving effect to the notification of 1977 which was correct in all respects if the explanation is read along with the notification so as to as a holistic approach and to have a proper interpretation of notification the explanation which has been committed to the notification cannot be lost sight of. Therefore, the notification has to be read along with the explanation so as to have a correct interpretation of the said notification. The question as to whether explanation seeks to control the operation or the effect of notification is indeed immaterial as the explanation purports neither to control nor to alter but only seeks the explanation. Therefore, the explanation in the notification dated 11.04.2007 clearly depicts that the object was to give effect to the notification of 1977 and that is why no new addition of areas have been done. So far as the constitutional vires and validity of Scheduled Areas (State of Bihar, Gujarat, Madhya Pradesh & Orissa) Order 1977 dated 31.12.1977, it was challenged before Hon'ble High Court of Patna (Ranchi Bench) in Amarendra Nath Dutta & Ors. vs. State of Bihar & Ors. (AIR 1983 Pat 151). In the Full Bench of the Hon'ble Patna High, the applicability of Section 71 of the Chhotanagpur Tenancy Act, 1908 and the Constitutional validity of 1977 order was challenged to be declared ultra vires on the ground:
(a) Firstly because the Fifth Schedule of the Constitution of India (amendment 76) was ultra vires. The Constitution under the unamended paragraph 6(2) of the Constitution, the President have no power to rescind the 1950 Order and increase the area as the Scheduled Area declared by 1950 order except in special circumstances enumerated in the original paragraph 6(2) and
(b) Secondly, because the 1977 order was ultra vires, the powers of the President under paragraph 6(2) gives the power to redefine and to increase area as Schedule Area has been 14 exercised arbitrarily and capriciously in contravention of the power to define the Scheduled Area.
18. The Hon'ble Patna High Court in case of Amarendra Nath Dutta & Ors. Vs. State of Bihar & Ors. reported in AIR 1983 Pat 151 FB, at paragraph 40, has been pleased to hold:
"40. The power of redefining the Scheduled areas is a very general and wide power. The areas may be redefined by excluding areas which have been included and/or by including areas which were originally not included within the Scheduled areas, for, the power to redefine is simply the power to define once again. Clause (2) of Paragraph 6 does not lay down the circumstances under which the President may rescind the previous Order or Orders made under Paragraph 6, nor does if impose any limitation or restriction on the said power of the President. How the areas should be redefined and, which areas should be included in Scheduled areas and which should be left out is apparently left to the absolute discretion of the President, Prima facie, therefore, the Order has been made within the scope of the powers conferred and does not violate any limitation or restriction imposed on the exercise of that power. It seems therefore, that the decision of the President regarding the areas, which are to form the Scheduled Areas, is not open to question and to judicial scrutiny."
19. Since the issue of constitutional validity of the order 1977 has already been set at rest by the Full Bench decision of the Patna High Court, the impugned Gazette notification of 2007 reiterating left out issues of 1977 notification is hit by the principles of res judicata, in view of decision of the Hon'ble Apex Court (2006)4 SCC 683 (State of Karnataka and Anr. vs. All India Manufacturers Organization and Ors.), wherein at paragraph 32 and 35, it has been held:
"32. Res Judicata is a doctrine based on the larger public interest and is founded on two grounds: one being the maxim nemo debet bis vexari pro una et eadem causa (no one ought to be twice vexed for one and the same cause) and second, public policy that there ought to be an end to the same litigation. I is well settled that Section 11 of the Civil Procedure Code, 1908 (hereinafter "CPC") is not the foundation of the principle of res judicta, but merely statutory recognition 15 thereof and hence, the section is not to be considered exhaustive of the general principle of law. The main purpose of the doctrine is that once a matter has been determined in a former proceeding, it should not be open to parties to reagitate the matter again and again. Section 11 CPC recognizes this principle and forbids a court from trying any suit or issue, which is res judicata, recognizing both "cause of action estoppels" and "issue estoppels". There are two issues that we need to consider, one, whether the doctrine of res judicata, as a matter of principle, can be applied to public interest litigations and second, whether the issues and findings in Somashekar Reddy constitute res judicata for the present litigation.
35. As a matter of fact, in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous public interest litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue, which had been raised should have been raised on an earlier occasion by way of a public interest litigation. It cannot be doubted that the petitioner in Somashekar Reddy was acting bona fide. Further, we may note that, as a retired Chief Engineer, Somashekar Reddy had the special technical expertise to impugn the Project on the grounds that he did and so, he cannot be dismissed as a busybody. Thus, we are satisfied in principle that Somashekar Reddy, as a public interest litigation, could bar the present litigation."
20. In another Constitutional Bench judgment of the Hon'ble Supreme Court in The Direct Recruit Class-II Engineering Officer' Association & Ors. vs. State of Maharashtra & Ors. reported in (1990)2 SCC 715; AIR 1990 SC 1607, at paragraph 35, it has been held:
"35. ... The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the 16 legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of rest judicata. To sum up, we hold that:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier declared by a competent court by a judgment which became final."
21. Having given our anxious consideration to the impugned Gazette notification, it is manifestly clear that the scheduling of the area has been done to rectify the left out areas on the basis of suggestion given by the State of Jharkhand vide Annexure-d to the counter affidavit of the State. The classification which has been done for scheduling the areas is a reasonable classification based on the touchstone of reasonable and intelligible differential which has a rational nexus to the object of the Constitution. Moreover, the Public Interest Litigations lack foundation of facts challenging the constitutional validity of the impugned Gazette notification 1977. In the absence of such, there is presumption of constitutionality of the impugned notification and nothing has been brought on record so as to negative the legislative competence. Moreover, law is well settled the hardship of the few cannot be the basis of validity of any dispute [(2013) 1 SCC 745].
22. The Hon'ble Supreme Court in Union of India vs. Rakesh Kumar and Ors., reported in (2010)4 SCC 51, at paragraph 51 and 58, has been pleased to observe that:
"51. In the present case, it was pointed out that the identification of Scheduled Areas is done on the basis of census data and the same is collected after intervals of 10 years. It was urged that the identification of Scheduled Areas may not be accurate if it was based on outdated data. Even though we were shown data describing the distribution of the population belonging to the Scheduled Tribes category in the various districts of Jharkhand (as per the 2001 census), it will suffice to say that the identification of Scheduled Areas is an 17 executive function and we do not possess the expertise needed to scrutinize the empirical basis of the same.
58. Irrespective of such permutations, the legislative intent behind the impugned provisions of JPRA is primarily that of safeguarding the interests of persons belonging to the Scheduled Tribes category. In the light of the preceding discussion, it is our considered view that reservations exceeding 50% of the seats in panchayats located in Scheduled Areas are permissible on account of the exceptional treatment mandated under Article 243-M(4) (b). Therefore, we agree with the appellants and overturn the ruling of the High Court of Jharkhand on this limited point."
That Article 361 of the Constitution of India envisages that the President shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
Fifth Schedule provides in its proviso that ".... any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order" that is to say that once the order for scheduling an area is passed under Sub clause 1 of 6 of part C of the Fifth Schedule then even the President himself cannot vary through a subsequent order.
23. So far as impugned notification of 2007 is concerned the Presidential order/notification cannot be subject to challenge as has been held by the Hon'ble Apex Court reported in (2001)1 SCC 4. Although it has been held in catena of judgments that the Presidential order/notification are amenable to judicial review on the ground of arbitrary or mala fide action or when the constitutional mandate is not followed. Therefore, in the backdrop of the premises as aforesaid and on the touchstone of Article 14 of the Constitution of India vis a vis the power of judicial review, we are of the view that the impugned notification dated 11.04.2007 which has been issued for declaration of 'Scheduled Area' under Clause 6 of the Fifth Schedule being within the exclusive discretion of the President neither violate any constitutional provisions nor the exercise of power has been done on extraneous considerations so as to be amenable to judicial scrutiny.
18In the backdrop of aforesaid premise, we do not find good reason to interfere in the impugned notification dated 11.04.2007, writ petitions (PIL) are, therefore, dismissed being devoid of any merit.
( R.R. Prasad, J.) (Pramath Patnaik, J.) Saket/-