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Jharkhand High Court · body

2012 DIGILAW 1669 (JHR)

Prabhu Niaran Samuel Surin v. Union of India

2012-11-29

JAYA ROY, PRAKASH TATIA

body2012
Order During the course of argument, it has come to notice of this Court that as per provision made in Vth Schedule of the Constitution of India a “Tribal Advisory Council” is required to be constituted. However, as per learned Advocate General such “Tribal Advisory Council” has been constituted in the State of Jharkhand. 2. In this writ petition, it has been stated that in view of Article 243 M, part IX of the Constitution of India shall not apply to the Scheduled Areas. However, Article 243M as such is applicable to the States of Nagaland, Meghalay and Mizoram. According to the petitioner when Panchayati Raj Act was enacted in the State of Bihar and in the State of Andhra Pradesh, their applicability were challenged and the Patna High Court and Andhra Pradesh High Court held that in view of the provision of Article 243M Panchayat Raj Act cannot be made applicable in the Scheduled Areas. Finding this situation, according to petitioner by invoking the provision as provided in Clause (4)(b) of Article 243M, Parliament enacted Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. In Section 4(O) of the said Act of 1996 a duty has been cast upon the State legislature to make an endeavor to follow the pattern of VIth Schedule to the Constitution while designing the administrative arrangement of the Panchayats at district level in the Scheduled Areas. Petitioner's grievance is that even after enactment of Act of 1996, after passing of about 16 years, no enactment has been made by the State legislature to give effect to the spirit of Section 4(O) of the Act of 1996. 3. Learned Advocate General seriously disputed the contention of petitioner by submitting that the State has taken full care of Section 4(O) of the Act of 1996 Act and has enacted the laws which will take full care of the provisions in the VIth Schedule and one of the Act relied upon by the learned counsel for the State is the Jharkhand Panchayati Raj Act and further relied upon the amendment Act i.e., Jharkhand Panchayati Raj Act, 2001. 4. Petitioner in this writ petition specifically pleaded that following Areas have been declared Scheduled Areas by extraordinary gazette notification dated 11th April, 2007: 1. Ranchi District 2. Lohardaga District. 3. Gumla District. 4. Simdega District. 5. Latehar District. 6. East-Singhbhum District. 7. West Singhbhum District. 8. Saraykela Kharsawan District. 4. Petitioner in this writ petition specifically pleaded that following Areas have been declared Scheduled Areas by extraordinary gazette notification dated 11th April, 2007: 1. Ranchi District 2. Lohardaga District. 3. Gumla District. 4. Simdega District. 5. Latehar District. 6. East-Singhbhum District. 7. West Singhbhum District. 8. Saraykela Kharsawan District. 9. Sahebganj District. 10. Dumka District. 11. Pakur District. 12. Jamtara District 13. Palamu District and Panchayat of Soberba Blockd 14. Garhwa District Bhandarla Block. 15. Godda District Sunderpahari and Boarijor Blocks. 5. It is specifically pleaded by petitioner in the writ petition that Scheduled Areas mentioned above constitutes of more than 70 % of the tribal population. This fact is being disputed by learned Advocate General and as well as by learned counsel for the Union of India. However, this important fact situation is required to be clearly understood before proceeding further because of the reason that originally Scheduled Areas in the State of Jharkhand which was originally belonging to the State of Bihar was declared Scheduled Area as back as in the year 1950. Thereafter, again and again Scheduled Area notifications were issued. In the year 2000, this new State of Jharkhand was created and Ranchi is the Capital city of the State of Jharkhand. We can take judicial notice of this fact that the claim of the petitioner with respect to 70 % population of the Ranchi to be constituting of tribal people is seriously doubtful. 6. Be that as it may be, since there is a “Tribal Advisory Council” constituted in the State of Jharkhand and it has important role to take care of the interest of the tribal peoples in the State of Jharkhand and, therefore, the said council will be in better position to assist this Court to address to the issues raised by the petitioner which has demanded from the State to more autonomy to the tribal Areas. Therefore, the “Tribal Advisory Council, Jharkhand” is impleaded as party respondent no. 5. The amended cause title may be filed by the petitioner within a period of two weeks along with requisite notice in two sets, one by registered post and another by ordinary process, for service of notice upon “Tribal Advisory Council, Jharkhand”. 7. Learned counsel for the State submitted that he will be providing the complete address of “Tribal Advisory Council” to the learned counsel for the petitioner within two days. 8. 7. Learned counsel for the State submitted that he will be providing the complete address of “Tribal Advisory Council” to the learned counsel for the petitioner within two days. 8. The “Tribal Advisory Council” may submit its counter affidavit by 8th January, 2012. The State may also submit the details of the population division of the Scheduled Areas as per the data available with them. 9. Put up this case on 8th January, 2013 under the heading “for final disposal”. 10. Copy of this order be given to learned counsel for the State, Union of India and also learned counsel for the petitioner. Ordered accordingly.