Uttarakhand High Court
Bhotiya Janjati Sangharsh Samiti, Now ... vs Dr. R.S. Toliya, Former Principal ... on 9 August, 2004
Equivalent citations: 2005(2)AWC1517(UHC)
Author: P.C. Pant
Bench: P.C. Pant
JUDGMENT P.C. Pant, J.
1. This contempt petition has been moved under Section 12 of the Contempt of Courts Act. 1971 for punishing the opposite parties for alleged wilful disobedience of Court's order dated 8th May, 2003, passed by Division Bench of this Court in Writ Petition No. 1654 (M/B) of 2001.
2. Brief facts giving rise to the petition are that the petitioner is a body looking after the interest of the tribals of Dharchula and Munsiary of District Pithoragarh and filed a Writ Petition No. 50718 of 1999 before the High Court of Judicature at Allahabad (now transferred to this Court under U.P. Re-organisation Act, 2000) claiming the relief therein that the Notification dated 24.6.1967, by which six communities including Bhotiyas were declared Scheduled Tribes under order of the President of India (copy of Notification as Annexure-1 to the contempt petition) be made applicable to all the residents of 'Bhot' area of the tehsil Dharchula and Munsiary. In other words, the petitioner sought that all castes residing within said tehsils be given benefit of the aforesaid Notification. Disposing of the writ petition the Division Bench of this Court after hearing the parties passed following order on 8.5.2003 :
"Heard Sri L.P. Naithani, learned counsel for the petitioner and Sri G.S. Bisht, learned counsel for the respondents.
After creation of the State of Uttaranchal, most of the grievances of the members belonging to the petitioner's community have been redressed for locating the area and providing the Presidential Order by which members of the petitioner's community have been declared Scheduled Tribes. The grievance only left is that remaining benefits claimed by them under the Constitution shall be given by implementing the Notification dated 24.6.1967, in pursuance of which Bhotiyas have been declared Scheduled Tribes.
Learned counsel for the petitioner placed reliance on the decision of the Supreme Court ; State of Maharashtra v. Milind and Ors., (2001) 1 SCC 4.
We dispose of this writ petition in terms of the aforesaid judgment."
Sd. A.C.J. Sd. Irshad Hussain, J.
3. This contempt petition has been moved alleging that the opposite parties namely, Dr. R.S. Toliya, Chief Secretary of Government of Uttaranchal and Sri Naveen Chandra Sharrna, the then District Magistrate, Pithoragarh have committed wilful disobedience by not complying the directions issued as quoted above.
While complaining so it is stated by the petitioner that the term "Bhotiya" is applicable to the people who inhabit in the area called "Bhot" in the hills of Uttar Pradesh (now Uttaranchal) between the people called 'Kumaonese' in Uttaranchal and the people called 'Huniyas', the residents of Hundesh (Tibet), This area of "Bhot" is separated by Tons River on the western side and by River Kali on the eastern side. It is further stated that Bhotiya community includes Bhotiya Brahmins, Bhotiya Jimdars (Rajputs), Bhotiya Saukas (Rajpur clans). Vide Notification No. G.S.R.-960 dated 26.6.1967 Jaunsari, Buksa. Raji, Tharu and Bhotiya were declared Scheduled Tribes. It is complained in the petition that even after directions passed vide order dated 8.5.2003 as above in Writ Petition No. 1654 (M/B) of 2001 (old No. 50718 of 1999), the opposite parties have deliberately not obeyed the orders and have not given benefits to the people entitled to the status of Scheduled Tribes. In this connection, the petitioner has further alleged that in the month of May, 2003, itself the opposite parties and the Chief Minister of Uttaranchal were informed of the order of the Court. The members of the petitioner's community made representation on 26.7.2003 and 28.7.2003 through Tehsildar Munsiari for the status of Scheduled Tribes and similar representation were made by the residents of Dharchula of the petitioner Society to the District Magistrate, Pithoragarh. However, instead of implementing the order of the matter was sent to the Secretary, Social Welfare of Government of Uttaranchal by the District Magistrate, Pithoragarh. The then Secretary, Social Welfare is now the Chief Secretary of Government of Uttaranchal. Dr. R.S. Toliya, Chief Secretary and Mr. Naveen Chandra Sharma, the then District Magistrate, Pithoragarh, have been impleaded as opposite parties. This petition has been moved with a prayer to punish them under Contempt of Courts Act, 1971.
4. The notices were issued to the opposite parties who have filed their separate counter-affidavits. In the counter-affidavit of the opposite party No. 1, Dr. R.S. Toliya, the Chief Secretary, it is stated that he has the highest respect for the Hon'ble Court but the allegations against the answering respondent are misconceived and false as there was no direction or order of Hon'ble Court to the deponent to do any particular act and as such no question of deliberate and wilful disobedience of the Court's order. It is further submitted that in the writ petition, the petitioners have alleged that the word "Bhotiya" in terms of Presidential Order dated 24.6.1967 issued under Article 342 of the Constitution of India pertains to a region and not to a category of people. But the order by which the writ petition is disposed of, there is no direction to the answering respondent to comply said order: Inl'act, in view of Article 342(2) it is the Parliament and Parliament alone who can exercise powers of exclusion or inclusion of any. category of people in the given tribe. The same has been held also in State of Maharashtra v. Milind and Ors.. (2001) 1 SCC 4. In the counter-affidavit it has been further stated that there was no action required to be taken at the level of the District Magistrate or that of the answering respondent. The opposite party No. 2, Mr. Naveen Chandra Sharma, the then District Magistrate, Pithoragarh, has also made the similar statements in his counter-affidavit.
5. A supplementary-affidavit has been filed on behalf of the petitioner enclosing therewith copy of the resolution passed on 21.11.2001 by Vidhan Sabha of Uttaranchal. It is further stated in said affidavit that letter dated 16.6.2003, issued by opposite party No. 1 to the District Magistrate, Pithoragarh, instructing him not to take any action in implementing the orders dated 8.5.2003 passed in aforesaid writ petition as the matter is being examined at the level of the Government.
6. I heard learned counsel for the parties at length and perused the affidavits and papers filed by the parties.
7. This Court, in its jurisdiction under Contempt of Courts Act, 1971, is confined to the question whether the opposite party No. 1 or opposite party No. 2 or both are guilty of wilful disobedience of the Court's order passed on 8.5.2003 in Writ Petition No. 1654 (M/B) of 2001.
8. To examine if the disobedience has been committed it is necessary to see what was the order or direction or the act required to be done under orders of the Court by the opposite parties. It is pertinent to mention here that in the aforesaid writ petition there were four respondents viz. (1) The Union of India, (2) Government of Uttar Pradesh, (3) The District Magistrate, Pithoragarh and (4) The State of Uttaranchal through Chief Secretary. The last sentence of the order of which disobedience is complained, reads like this :
"We dispose of this writ petition in terms of the aforesaid judgment."
The judgment mentioned in the said order is that of the Supreme Court passed in State of Maharashtra v. Milind and Ors.; (2O01) 1 SCC 4. I have gone through the said judgment which says that power as to the declaration, inclusion or exclusion of any category of people as Scheduled Tribe vests only with the Parliament as provided under Article 342 of the Constitution of India. Article 342 of the Constitution of India reads as under :
"342. Scheduled Tribes.--(1) The President [may with respect to any State (or Union territory), and where it is a State, after consultation with the Governor by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State [or Union territory], as the case may be).
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
9. As such opposite party No 1. Dr. R.S. Toliya, the Chief Secretary of Government of Uttaranchal and opposite party No. 2, Mr. Naveen Chandra Sharma, the then District Magistrate, Pithoragarh has little to do in the matter and it is for the Parliament to take decision in the matter. Annexure-SA 2 filed with the supplementary-affidavit dated 4.8.2004 of the petitioner itself shows that Vidhan Sabha of Uttaranchal has resolved under Rule 86 with the recommendation that Blocks Dharchula and Munsiary of district Pithoragarh, Block Joshimath of District Chamoli, Block Purola and Nogaon of district Uttarkashi and Block Jaunpur of district Tehri Garhwal be declared Scheduled Tribes and a letter in pursuance thereof has been sent on 26th December, 2001 by opposite party No. 1 to the Secretary, Ministry of Tribal Affairs, Government of India, New Delhi.
10. In view of the above discussion and facts, this Court does not find either opposite party No. 1 or opposite party No. 2 guilty of wilful disobedience of the Court's order dated 8.5.2003, passed in Writ Petition No. 1654 (M/B) of 2001. Hence the petition under Contempt of Courts Act is dismissed and notices are discharged. No order as to costs.