Kolhan Raksha Sangh vs Union Of India & Ors on 21 January, 2011

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Jharkhand High Court

Kolhan Raksha Sangh vs Union Of India & Ors on 21 January, 2011

Bench: R.K.Merathia

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(C) No. 5359 of 2010
                                    --
        Kolhan Raksha Sangh                 ...Petitioner
                               Versus
        The Union of India & Others          ........Respondents
             -----
        Coram      :THE HON'BLE MR. JUSTICE R.K.MERATHIA

        For the Petitioner       : Mr. Kaushalendra Prasad, Advocate
        For the Respondents      : Mr. S. Gadodia, Advocate
                                  : Mr. Prabhash Kumar, Advocate
                                 -----

2/21.01.2011

Mr. Kaushalendra Prasad, learned counsel appearing for the petitioner, submitted that the main claim of the petitioner is that Kolhan Area (situated within the district of East and West Singhbhum and Saraikella) be governed by the Local Customary Laws of that area.

On the other hand, Mr. Gadodia, appearing for respondent no. 7- Jharkhand State Election Commission, referred to paragraph 82 of the judgement reported in 2005(4) JLJR-Dhananjay Mahto Vs. Union of India, which reads as follows:-

"82. Therefore, it is evident that the tribal heads, such as, Manjhies, Mundas, Pahan etc. having been empowered to preside over Gram Sabha, by constituting Panchayats at all levels, no interference has been made with the customary law or social and religious practices or traditional management practices of community resources. On the other hand, the Gram Sabha headed by Manjhies, Mundas, Pahan etc. have been clothed with more power under the Jharkhand Panchayat Raj Act, 2001, including the powers under the customary law etc. Thus, the prayer, as made by the petitioner of WPC No. 5939 of 2001 cannot be accepted.

He further submitted that on the appeal filed by Union of India only that portion of the said judgment under which second proviso to section 4 (g) of the Panchayats ( Extension to the Scheduled Areas) Act, 1996 ( PESA Act) was struck down, was set aside with the corresponding provisions in the Panchayat Raj Act, by the Supreme Court in the case of Union of India Vs. Rakesh Kumar, reported in (2010) 4 SCC 50. He further referred to paragraph 59 of the said judgment of Rakesh Kumar, which reads as follows:-

"59. Dr. M.P. Raju, learned counsel appearing for one of the respondents, contended that the Jharkhand Panchayat Raj Act should not have been extended to the "Scheduled Areas" as the Scheduled Tribes were enjoying more powers under the Fifth Schedule to the Constitution. The learned counsel contended that if those provisions are held tobe unconstitutional as held by the High Court, it would be better to revert to the system of Tribes Advisory Councils under the Fifth Schedule. We do not find much force in the contention and it is only to be rejected."

He, therefore, submitted that petitioner cannot be allowed to re- agitate the issue that Kolhan Area should be governed by the customary law.

In reply, learned counsel for the petitioner referred to the portion of the Bhuria Committee report considered in paragraph 8 of the judgment of Rakesh Kumar ( supra).

It appears that the portion of the Bhuria Committee report was considered while considering the challenge to the portion of the judgment of Dhananjay Mahto, relating to second proviso to section 4(g) of the PESA Act.

Thus, it appears that petitioner is raising the issues which have been settled and which will be deemed to have been settled by this Court and the Supreme Court.

In the result, this writ petition is dismissed. However, no costs.

( R.K. Merathia, J) Rakesh/

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