Ramvao Shimray, Aged About 52 Years, S/O. Khalatkhai v. State of Manipur
2010-09-14
AMITAVA ROY, B.D.AGARWAL
body2010
DigiLaw.ai
Amitava Roy, J:- The instant public interest litigation has been initiated seeking annulment of the notification dated 11.09.2009, effecting delimitation of the District Council Areas in the State of Manipur, as well as the notification dated 11.01.2010, publishing the Manipur (Hill Areas) District Councils (Election of Members) Rules, 2009, (for short hereafter referred to as the Rules). A writ of mandamus have been sought for directing the respondents to extend the provisions of the VIth Schedule of the Constitution of India to the State of Manipur and to restrain them from holding the elections of the autonomous district councils till then. Notice of motion was issued on 24.02.2010, keeping the question of maintainability of the writ petition. Further, by order dated 29.03.2010, this Court pruned the issues as would be evidenced thereby. By the said order, the prayer for restraining the conduct of the District Council Elections was declined. 2. We have heard Ms. U Das, learned counsel for the petitioners, Mr. N Koteshwar, learned Advocate General, Manipur and Mr. R Sarma, learned Solicitor General of India, Guahati High Court, Guwahati.Also heard Mr. LS Singh, Senior Advocate for the respondent No. 3. 3. The foundational facts of the instant proceeding are provided in the writ petition. The petitioners claim themselves to be public spirited and social minded members of the Scheduled Tribe community of the State of Manipur, seeking to espouse the interest of the general public of the State residing in hill areas. They have referred to a series of meetings of the State Cabinet held between 13.05.1991 and 28.03.2001 presided over by the successful Chief Minister of the State, in which it was, inter alia, recommended that the provisions of the VIth Schedule of the Constitution of India be extended in the hill areas of the State of Manipur with certain local adjustment and amendments. The resolution of the meeting of the Hill Area Committee held on 22.04.2002 proposing deletion of the suggestion to effect local adjustment and amendments, has also been referred to. According to the petitioners in the said meeting, the Hill Area Committee also resolved to request the Government of Manipur to conduct election of the District Autonomous Councils in the hill areas of the State as early as possible with such extension of the VIth Schedule of the Constitution of India as proposed.
According to the petitioners in the said meeting, the Hill Area Committee also resolved to request the Government of Manipur to conduct election of the District Autonomous Councils in the hill areas of the State as early as possible with such extension of the VIth Schedule of the Constitution of India as proposed. The petitioners have averred that thereafter, initiatives were taken on behalf of the Union Government to elicit response from the State Government. Further, particulars on the issue including identification of areas to be integrated to the VIth Schedule of the Constitution of India together with local adjustment and amendments as advised. The petitioners have pleaded that the Hon'ble Deputy Prime Minister of India as well, by his letter dated 07.04.2003 to the Chief Minister of the State reiterated early steps in this regard. It was, inter alia, mentioned therein that elections to the autonomous councils of the State had not been held for over a decade. This was followed by, according to the petitioners, a memorandum of the Hill Area Committee of the Manipur, Legislative Assembly with the Prime Minister of the Country on 14.09.2003 on the subject matter. While the matter rested at that, the Government of Manipur without pursuing the issue bearing on the extension of the VIth Schedule of the Constitution of India to the hill areas of the State initiated steps for amendment of Manipur Hill Areas (District Councils) Act, 1971, which, in fact materialize with the enactment of the Manipur (Hill Areas) District Councils (Third Amendment) Act, 2008. Thereafter, the Secretary (Hills), Govt. of Manipur issued a notification on 11.09.2009, publishing the delimitation of the boundaries of 24 constituencies of the Autonomous District Councils of the State in exercise of power under the aforementioned Act. The said authority subsequent thereto, published the Manipur (Hill Areas) District Councils (election of members) Rules 2009, by a notification dated 11.01.2010. 4. Whereas, the petitioners have assailed the delimitation of the District Council Constituencies on the ground that it was impermissible without extending the provision of the VIth Schedule of the Constitution of India to the hill areas of the State and that too by disregarding the principle determinant of electorates and not the visible population.
4. Whereas, the petitioners have assailed the delimitation of the District Council Constituencies on the ground that it was impermissible without extending the provision of the VIth Schedule of the Constitution of India to the hill areas of the State and that too by disregarding the principle determinant of electorates and not the visible population. They have impeached the publication of the Rules prior to its placement before the State Assembly as mandatorily required contending that the inaction and indifference on the part of the State Government to intimate/inform the proposed modifications/amendments to the VIth Schedule of the Constitution of India to the Union Government in its application to the hill areas of the State as an inexplicable failure in the discharge of its public duty. The reliefs as above, have been insisted upon. 5. The State of Manipur has not filed any affidavit. The respondent No. 3, Department of Hills, through the Commissioner/Secretary (Hills) Govt. of Manipur, Imphal, has questioned the maintainability of the present proceeding on the ground of locus standi of the petitioners. It has pleaded as well, that one Mr. Ngachonmi Chamroy, a social worker representing the people in Hill areas in the State of Manipur had, earlier instituted PIL No. 3/2009 for directions to the State respondents to hold elections to the six Autonomous District Council in terms of the Act and the Rules and that the same was rigorously persuaded, whereafter, it was withdrawn on 18.03.2010, as the schedule for holding the said elections was outlined by the Governor of Manipur. The answering respondent stated that therefore, the notification of holding election had been issued and on the completion of the polls as scheduled, candidates had been returned from the respective constituencies to the corresponding districts councils. The respondent has further urged that the issue of extension of the provision of the VIth Schedule of the Constitution of India is in the realm of Government policy and that the prayer for a writ of mandamus as made is wholly misconceived. As, in any view of the matter, the decision for extension or otherwise of the provisions of the VIth Schedule of the Constitution of India to the hill areas of the State would finally be the prerogative of the Parliament, the instant proceeding is liable to be adjudged as not maintainable.
As, in any view of the matter, the decision for extension or otherwise of the provisions of the VIth Schedule of the Constitution of India to the hill areas of the State would finally be the prerogative of the Parliament, the instant proceeding is liable to be adjudged as not maintainable. The challenge to the notifications dated 11.09.2009 and 11.01.2010, has also been dismissed as utterly untenable. 6. The petitioners by their additional-affidavit have sought to bring on record, in particular, the extracts of the proceedings of the Houses of the Parliament relatable to the constitutional amendment vis-a-vis the extension of the provisions of the VIth Schedule of the Constitution of India to the State of Tripura with reference as well to the State of Manipur. 7. Ms. Das, has insistently argued that it being apparent on the face of the records that the State of Manipur on principle had concurred on the extension of the provisions of the VIth Schedule of the Constitution of India to its Hill areas, its passive inaction to pursue the issue and to forward the required report with the essential facts and figures to the Union Government is without any conceivable justification and as the same has resulted in arbitrary denial of the local and fundamental rights of the members of the hill tribes of the State, an appropriate direction ought to be issued to it to complete the process initiated in this regard. In absence of any affidavit-in- opposition by the State respondents offering any explanation for their supine apathy on the issue having a bearing on general public interest, a writ of mandamus ought to be issued compelling the State to discharge its public duty, she urged. The learned counsel dismissed the challenge to the maintainability of the proceedings on the ground that the petitioners adequately represent the interest of the majority members of the hill tribes of the State and that their present pursuit to espouse public interest ought not to be negatived on the ground of delay, as alleged. The State respondents themselves being incomprehensibly tardy in discharging their public duty, no plea of delay on the part of the petitioners is entertainable, she argued. Ms. Das, sought to endorse her contentions by placing reliance on the decision in State of Himachal Pradesh & Anr. Vs. Umed Ram Sharma & Ors. (1986) 2 SCC 68 . 8.
The State respondents themselves being incomprehensibly tardy in discharging their public duty, no plea of delay on the part of the petitioners is entertainable, she argued. Ms. Das, sought to endorse her contentions by placing reliance on the decision in State of Himachal Pradesh & Anr. Vs. Umed Ram Sharma & Ors. (1986) 2 SCC 68 . 8. The learned Advocate General per contra has denounced the present proceeding to be one politically mooted on the eve of the District Council Elections and being bereft of any bona fide or sincerity in approach. He has questioned as well, the locus standi of the petitioners pleading in absence of adequate materials to demonstrate their authority and status to represent the members of the Hill Tribes of the State. According to Mr. Koteshwar, not only the issue involved is exclusively in the realm of executive policy and the dominion of Parliamentary privilege, the petitioners having miserably failed to demonstrate the existence of any legal or fundamental rights of any section of the citizens or the hill tribes of the State and/or infringement thereof, the instant proceeding is apparently misconceived is liable to be dismissed in limine. This is more so as the members of the hill tribes and inhabitants of the hill areas of the State are presently governed by the provisions of the Act and the Rules, wherein the elections to the District Councils have been held. Referred to the PIL No. 03/2009, insisting for the conduct of the election of the District Councils, which has since been duly completed, the learned Advocate General maintain that the petitioners' plea are wholly incompatible therewith and, therefore, are rejectable without further scrutiny. He has further urged that the alleged inaction of the State Government can by no means be construed to be in violation of the legal and fundamental rights of the petitioner and in terms of the guidelines under the High Court Rules cannot be a subject matter of public interest litigation as well. As the proposals and/or recommendations of the State Government on the issue would always be subject to the overall dominion of the Parliament qua the amendment of the Constitution, the writ as prayed for, even other wise, may prove to be futile and, therefore, ought not to be issued, he pleaded. According to Mr.
As the proposals and/or recommendations of the State Government on the issue would always be subject to the overall dominion of the Parliament qua the amendment of the Constitution, the writ as prayed for, even other wise, may prove to be futile and, therefore, ought not to be issued, he pleaded. According to Mr. Koteshwar, in the face of the order dated 29.03.2010, the truncated prayer to direct the State respondents to submit its report, is also misplaced. Without prejudice to the above, he has urged that as alternative fora involving the Parliament and the State Legislature are comprehensible, no judicial intervention, in the attendant facts and circumstances is warranted. To reinforce his arguments, the learned Advocate General has placed reliance on the following decisions of the Apex Court in Maharshi Avadhesh Vs. Union of India, 1994 Supp. (1) SCC 713, Common Cause (A Regd. Society) Vs. Union of India, (2008) 5 SCC 511 , Kanhaiya Lal Sethia Vs. Union of India, (1997) 6 SCC 573 , DDA Vs. Rajendra Singh, (2009) 8 SCC 582 , Director of Settlements, AP Vs. MR Apparao, (2002) 4 SCC 638 and State of Uttaranchal Vs. Balwant Singh Chaufal, (2010) 3 SCC 402 . 9. The leaned Assistant Solicitor General of India has submitted that the proposals and/or recommendations from the State Government on the issue have not yet been received and that the same would be acted upon if forwarded to the Union Government. 10. We have lent our anxious consideration to the pleadings available and the arguments advanced. To decide the scope of scrutiny, it is apt to quote the order dated 29.03.2010 as hereunder:- "The prayer in the writ petition is for a Writ of Mandamus directing extension of the provisions of the Sixth Schedule of the Constitution to the Tribal Areas of the State of Manipur. On being pointed that no such direction can be issued by the Court, Shri BP Sahu, learned counsel for the petitioner has submitted that what is essentially being prayed for in the writ petition is for a direction to the State of Manipur to complete the process/steps for submission of necessary report in this regard to the Central Government for necessary action. The further prayer in the writ petition I for stay of the District Council Election that are due and scheduled to be held in the coming few weeks.
The further prayer in the writ petition I for stay of the District Council Election that are due and scheduled to be held in the coming few weeks. On the basis of the modified prayer, this writ petition is admitted to regular hearing. Office to list this case for hearing on 4th May, 2010. Having regard the learned counsel on the prayer for interim stay of the District Council Elections, the Court is of the view that same ought not to be granted and is, therefore, declined." 11. Thereby, the petitioners modified prayer stands for a direction to the State of Manipur to complete the process/steps for submission of necessary report relating to the extension of the VIth Schedule of the Constitution of India to its territorial limits before the Central Government for necessary action. The prayer for interim suspension of the process with regard to the District Council Elections was declined. Admittedly, meanwhile, the said election has been held. The petitioners, though, have introduced themselves to be public spirited and social minded members of the Scheduled Tribes community of the State, the instant petition does not disclose any foundational facts justifying such a representation, action and the reason for the inability of the other members of the said committee to join them in the issue. Except a statement that the instant proceeding has been filed by them in the interest of the public of the State who are residing in the hill areas, there is no other demonstrable fact or evidence justifying the same. In other words, there is no prima facie, evidence that the petitioners have the locus standi to espouse a public cause on behalf of a sizable segments of the society whose legal and/or fundamental rights had been infringed by the alleged inaction on the part of the State respondents in not completing the process of submission of its report with the Central Government for extension of the provision of the VIth Schedule of the Constitution of India to the State of Manipur. This assumes significance in the face of the institution of PIL No. 03/2009 before this Court by one Mr. Ngachonmi Chamroy, a social worker seeking necessary directions to the State respondents to hold election in six Autonomous District Councils in terms of the Act and the Rules framed thereunder.
This assumes significance in the face of the institution of PIL No. 03/2009 before this Court by one Mr. Ngachonmi Chamroy, a social worker seeking necessary directions to the State respondents to hold election in six Autonomous District Councils in terms of the Act and the Rules framed thereunder. It is also a matter of record, this proceeding was eventually withdrawn on 18.03.2010, as the State Government in defence to the mounting public demand decided to hold elections at an early date. To reiterate, the elections, meanwhile, have been held. The pleas of extension of the provisions of the VIth Schedule of the Constitution of India to the State of Manipur as a precondition for holding such elections, thus looses all significance. The Acts and Rules are in place and in terms of the order dated 29.03.2010 of this Court, those are not open to challenge. The petitioners for the present, in view of the above, cannot insist for a direction to the State Government to extend the provisions of the VIth Schedule of the Constitution of India to the State of Manipur. 12. Though, the averments made in the petition and the documents appended thereto reveal that at some point of time in the long part, the State Cabinet was not disinclined to the idea of extension of the VIth Schedule of the Constitution of India to the tribal areas of the Hill Districts of Manipur and that as far back as in the year 2003, the then Deputy Prime Minister of the country had, on the basis of the representations on the issue, requested the Chief Minister of the State to pay enough attention thereto so that the recommendations of the State Government thereon be made available to the Ministry of Home Affairs, Government of India. As the matter dominantly is in the realm of executive policy contingently on a host of considerations of which the State Government is the best judge, it is considered inexpedient and inappropriate to issue any mandatory direction to it, as sought for. As it is, as in the ultimate, the recommendation of the State Government, even if made in favour of the application of the VIth Schedule of the Constitution of India to the tribal areas of the hill districts of the State of Manipur, the issue would catapulted into the domain of Parliamentary Rubric perfunctory to the consequential constitutional amendment.
As it is, as in the ultimate, the recommendation of the State Government, even if made in favour of the application of the VIth Schedule of the Constitution of India to the tribal areas of the hill districts of the State of Manipur, the issue would catapulted into the domain of Parliamentary Rubric perfunctory to the consequential constitutional amendment. Though, the State respondents No. 1 & 2, having filed their counter, disclosing the reason for their quiescence, having regard to the nature of the issue and the conceivable projections thereof on the constitutional governance of the State of affairs, no direction as sought for, at this distant point of time, is considered advisable. 13. The decision of the Apex Court in State of State of Himachal Pradesh & Anr. (Supra), permitting a court of law to take an affirmative action in case of Governmental inaction or lethargy, in the attendant facts and circumstances of the case, does not advance the case of the petitioners. As has been held in a plethora of decisions of the Apex Court and reiterated in State of Uttaranchal (Supra), a legal wrong or a legal injury to a person or to a determinative person by violation of any constitutional or legal right is the quintessence of the maintainability of a public interest litigation. The Apex Court therein, recalled its observations in Holicow (Supra). It held that Public Interest Litigation should be aimed at redressal of genuine public wrong or public injury and not public and ought not to be publicity oriented or founded on personal vendetta. In paragraph 181 of its decision in State of Uttaranchal (Supra), it catalogued the imperative directions to preserve the purity and sanctity of public interest litigation, which, inter alia, underlines that such a proceeding should be closely scrutinised to ensure that its aimed at redressal of genuine public harmony or public injury and must not be prompted by ulterior motives of personal gain or extraneous considerations. 14. The guidelines to be followed for entertaining public interest litigation as framed by the Supreme Court and adopted by this Court also, inter alia, predicate complaints against Central/State Government departments and local bodies, except so far as it would relate to anyone or more of the ten categories as mentioned therein. The cavil of the petitioner is beyond the ambit thereof.
The cavil of the petitioner is beyond the ambit thereof. That a court of law should guard against the legislation by it or direct the legislature to enact or requiring executing authority to exercise its power of delegated legislation to make laws or otherwise encroached into sphere of the other organ of the State, had been constitutionally declared by the Apex Court in umpteen and number of occasions amongst others in Common Cause (A Regd. Society) Vs. Union of India and Union of India Vs. Prakash P Hinduja, (2008) 5 SCC 511 and Maharshi Avadhesh Vs. Union of India, 1994 Supp. (1) SCC 713. 15. Precisely in Kanhaiya Lal Sethia Vs. Union of India, (1997) 6 SSC 573, their Lordships held the view that the issue of inclusion or otherwise of a particular thing in the VIIIth Schedule to the Constitution of India is a matter of policy of the Union and generally the Courts do not, in the exercise of their power of judicial review interfere therewith, unless the policy so formulated either violates the mandate of the Constitution or any other statutory provision or is otherwise actuated by mala fide. That the petitioner therein had no vested fundamental right to compel the Union of India to bring forth a particular legislation or to exercise its discretion in a particular manner in the Parliament, was recorded in emphatic terms. 16. Apart from the fact that the materials on record do not adequately endorse the locus standi of the petitioners, the instant petition is also liable to be rejected on the ground of delay, as has been held by the Apex Court in DDA Vs. Rajendra Singh, (2009) 8 SCC 582 . There is no explanation of any persuasive worth to account for the time lag from which the petition suffers. To repeat, as the petitioners have failed to establish the existence of a legal right in them to seek the direction as prayed for and the inexplicable failure on the part of the State respondents to attend thereto, a writ of mandamus, howsoever limited in effect cannot issue. 17. On a totality of the considerations as hereinabove, this petition lacks in merit and is accordingly dismissed. No costs.