Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 509 (ORI)

Rashid Aslam v. State of Orissa

2003-08-14

L.MOHAPATRA

body2003
JUDGMENT SUJIT BARMAN ROY, C.J. — We have heard the learned counsel for respective parties as regards the prayer for interim order. But, in course of hearing of the matter and in view of the stand taken by the respective parties, it seems that if we decide all those questions agitated before us, it will amount to final disposal of the writ petition. Accordingly, we have obtained consent from the learned counsel for respective parties for final disposal of the writ petition. 2. Orissa State Legislature has amended the Orissa Munici¬pal Act, 1950 in conformity with the provisions of Part IX-A of the Constitution of India as inserted by Constitution (74th Amendment) Act, 1992. This case relates to election to Rourkela Municipality. Said Municipality is admittedly situated within the scheduled areas under the provisions of Fifth Schedule to the Constitution India. Learned counsel for the petitioner while referring to Article 243ZC which occurs in part IX-A of the Constitution of India contended that in view of this provision, the provisions of the Orissa Municipal Act as amended in conform¬ity with the provisions of Part IX-A of the Constitution cannot apply in respect of election of municipality situated within the scheduled areas establishment under the provisions of Fifth Schedule of the Constitution. It is therefore contended by the learned counsel for the petitioner that a declaratory relief be granted to this effect and the opposite parties be restrained from holding any election of the said Rourkela Municipality under the provisions of the Orissa Municipality Act. On the other hand, learned counsel for the State Election Commission as well as Mr. P. K. Mohanty, learned Additional Government Advocate drew our specific attention to para 5 of Fifth Schedule of the Constitution of India. On the other hand, learned counsel for the State Election Commission as well as Mr. P. K. Mohanty, learned Additional Government Advocate drew our specific attention to para 5 of Fifth Schedule of the Constitution of India. Sub-para (1) of Para-5 of the said Schedule provides : “(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 subject to such exceptions and modifications as he may specify in the noti¬fication and any direction given under this Sub-paragraph may be given as to have retrospective effect.” Therefore, the contention of the learned counsel for opposite parties is that despite what is provided by or under Article 243ZC, the Governor has power under paragraph 5 of Fifth Schedule to the Constitution to decide whether or not the provisions of the Orissa Municipal Act as recently amended in conformity with the constitutional mandate contained in Part IX-A thereof should apply to municipalities situated within such scheduled areas. 3. If we accept the contention of the learned counsel for the petitioner that in view of the mandate contained in Article 243ZC, the provisions of paragraph 5 of Fifth Schedule to the Constitution of India would be inapplicable to municipalities situated in scheduled area then the Governor cannot exercise his discretion vested in him under the said paragraph. Therefore, the sum and substance of the contention of the learned counsel for the petitioner is that the provisions of Article 243ZC being repugnant or inconsistent with the provisions of paragraph 5 of Fifth Schedule, it will be Article 243ZC which should prevail over paragraph 5. 4. It is well settled rule of interpretation of statute that every effort must be made so as to harmonise apparently conflicting provisions of the same statute. All efforts must be made, if possible, to adopt an interpretation so that one part or the other do not become devoid of any application or meaning. It is the settled principle of interpretation of statute that a statue must be read as a whole and one provisions of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole stat¬ute. It is the settled principle of interpretation of statute that a statue must be read as a whole and one provisions of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole stat¬ute. Such a construction has the merit of avoiding any inconsist¬ency or repugnancy either within a section or between different parts or sections of the same statute. It is duty of the Courts to avoid” a head on clash” between different sections or the provisions of the same Act, and, “whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise’. It should not be lightly assumed that "parliament had given one hand what it took away with other”. It has further been held in catena of decisions of the Apex Court that the provisions of one section of the statute cannot be used to defeat those of another” unless it is impossible to effect reconciliation between them”. 5. Parts IX and IX-A were inserted in the Constitution by the Constitution (74th Amendment) Act, 1992. It is true that Article 243ZC provides as follows : “243ZC. (1) Nothing in this part shall apply to the Scheduled Areas referred to in Clause (1), and the tribal areas referred to in Clause (2), of Article 244. (2) Nothing in this part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council con¬stituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal. (3) Notwithstanding anything in this Constitution, Parlia¬ment may, by law, extend the provisions of this Part to the Sched¬uled Areas and the tribal areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purpose of Article 368". 6. Therefore, Article 243ZC declares that nothing con¬tained in Part IX-A of the Constitution shall apply to scheduled areas referred to in Clause (1) and tribal areas referred to in Clause (2) of Article 244. The law making power on the subject has been conferred exclusively on the State Legislature by Entry 5 of List II - State List. 6. Therefore, Article 243ZC declares that nothing con¬tained in Part IX-A of the Constitution shall apply to scheduled areas referred to in Clause (1) and tribal areas referred to in Clause (2) of Article 244. The law making power on the subject has been conferred exclusively on the State Legislature by Entry 5 of List II - State List. None of the provisions of the Constitu¬tion including Part IX-A thereof has taken away such law making power of the State Legislature conferred upon it by or under Entry 5 of List II - State List. It is true that Article 245 of the Constitution provides that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Therefore, the law making power under Entry 5 of List II - State list which has been conferred exclusively on the State Legislature is subject to provisions of the Constitution. That power has not been diluted or taken away by inserting Part IX-A in the Constitution. But in view of the provisions of Part IX-A, the State Legis¬lature and the State Government are under obligation to either make new law or amend the existing law on the subject in conform¬ity with the broad outlines given in Part IX-A of the Constitu¬tion. However, State is under obligation to apply such laws to Municipalities situated outside scheduled areas or tribal areas. This is evident from Article 243ZC. Therefore, State Legislature is not under any obligation to apply Part IX-A of the Constitu¬tion or the laws made in conformity therewith to Municipalities situated within scheduled areas or tribal areas. Had there been no such Part IX-A inserted by the Constitution (74th Amendment) Act, 1992, the State Legislature would not have been deprived of its law making power under entry 5 of State List in respect of Scheduled areas constituted under the provisions of Fifth Sched¬ule to the Constitution. Surely, that power cannot be taken away. Therefore, the effect of Article 243ZC is that while making laws in conformity with the provisions of Part IX-A of the Constitu¬tion, the State is not under compulsion or obligation to extend similar laws to areas governed by or under the provisions of Fifth Schedule to the Constitution. Surely, that power cannot be taken away. Therefore, the effect of Article 243ZC is that while making laws in conformity with the provisions of Part IX-A of the Constitu¬tion, the State is not under compulsion or obligation to extend similar laws to areas governed by or under the provisions of Fifth Schedule to the Constitution. The State Legislature has power to make such laws independent of Part IX-A of the Constitu¬tion. Such laws as may be made by the State Legislature which is relatable to Entry 5 of List II - State List of the Constitution can be applied not only to municipalities in areas outside the scheduled areas and tribal areas but also to the Municipalities within scheduled areas as well as tribal areas even if no such amendment was introduced in the Constitution by inserting Part IX-A. In that view of the matter, it appears to us that under Part IX-A though the State Legislature and the State Government are under obligation to make law in respect of the areas situated outside the scheduled areas in conformity with Part IX-A, it is under no such obligation or compulsion to make such laws in re¬spect of the scheduled areas or tribal areas. The effect of Article 243ZC is simply this, But, it does not mean that the State Legislature is deprived of any such power to make laws in respect of municipalities situated within the scheduled areas or tribal areas. It may be obligatory to make laws in conformity with Part IX-A in respect of areas situated outside the scheduled areas or tribal areas. But the State is not under any obligation or compulsion to make any law in conformity with Part IX-A of the Constitution so far as their applicability to scheduled areas and tribal areas is concerned. But at the same time the State Legis¬lature has indeed all the powers independent of Part IX-A to make similar law in respect of municipalities situated within the scheduled areas or tribal areas, as the case may be. But at the same time the State Legis¬lature has indeed all the powers independent of Part IX-A to make similar law in respect of municipalities situated within the scheduled areas or tribal areas, as the case may be. In that view of the matter, were are of the view that if the Governor does not think it proper in exercise of his discretion conferred upon him by or under paragraph 5 of Fifth Schedule to the Constitution to withhold the applicability of Orissa Municipal Act as amended in conformity with Part IX-A of the Constitution to the Scheduled areas or the tribal areas, as the case may be, this Court cannot compel the Governor that is, the State Government to withhold the application of Orissa Municipal Act to those areas. 7. In the circumstances, we do not find any ground to interfere with the proposed election in Rourkela Municipality in accordance with the provisions of the Orissa Municipal Act as amended in recent time in conformity with Part IX-A of the Con¬stitution. However, it is open to the Governor to withhold the application thereof to the Scheduled areas and it is not for the Court to usurp this power conferred upon the Governor by Para¬graph 5 of the Fifth Schedule to the Constitution. 8. If we adopt the aforesaid interpretation, we feel that the apparent repugnancy or conflict or inconsistency between the provisions of Article 244 (1) read with paragraph 5 of Fifth Schedule to the Constitution and Article 243ZC thereof can be avoided and both these provisions will not be rendered devoid of any meaning or application. Only such an interpretation can bring about reconciliation between the aforesaid provisions of the Constitution. 9. In the result, we do not find any merit in this peti¬tion and accordingly, the writ petition is dismissed. The interim order passed earlier stands vacated. No order as to cost. Petition dismissed.