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2013 DIGILAW 104 (CHH)

B. K. Manish v. State of Chhattisgarh

2013-03-12

PRITINKER DIWAKER, YATINDRA SINGH

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JUDGMENT 1. The main point involved in this Public Interest Litigation (PIL) is. Whether the Governor ought to have framed the Chhattisgarh Tribes Advisory Council Rules, 2006 (the Rules) under sub-paragraph 3 of paragraph 4(4(3)) of the fifth Schedule of the Constitution in his discretion or the Rules framed by the State of Chhattisgarh (the State) and authenticated on his behalf are sufficient compliance of law. THR FACTS 2. The scheduled tribes (ST) are the most backward class in our society and special provisions are required for their protection and their land. Part X of the Constitution is titled. The Scheduled and Tribal Areas. It has two articles namely 244 and 244A. 3. The Fifth Schedule has been inserted in the Constitution under Article 244(1) of the Constitution for protection of the tribal land in the States other than Assam, Meghalaya, Tripura and Mizoram; whereas, the Sixth Schedule has been inserted in the Constitution for their protection of their protection in the State of Assam, Meghalaya, Tripura and Mizoram under Articles 244(2) and 275 (1) of the Constitution. 4. Part C of the Fifth Schedule is titled as Scheduled Areas. It has one paragraph namely 6. Under this paragraph, the President is entitled to declare any area as scheduled area and some areas within the State have also been declared as scheduled areas. A list of these areas has been appended as Appendix-1. The impugned Rules have been framed under the fifth Schedule of the Constitution for protection of this area and the scheduled tribes. 5. In the writ petition, the State and Secretary, Scheduled Tribe, Scheduled Caste Development Department of the State have filed their reply opposing the writ petition. 6. This writ petition was taken up on 19-11-2012 and on that day, the Court opined that it was a fit case in which the Union of India should also be heard. The Assistant Solicitor General of India (the ASG) was supplied with two copies and was requested to file reply. 7. The ASG has made statement that Union of India supports the case of the State and has filed written submissions supporting the stand taken by it. POINTS FOR DETERMINATION 8. We have heard Shri Sourabh Dangi as the friend of the Court for the Petitioner; the Advocate General and Deputy Government Advocate for the State and its official; and the ASG for the Union of India. POINTS FOR DETERMINATION 8. We have heard Shri Sourabh Dangi as the friend of the Court for the Petitioner; the Advocate General and Deputy Government Advocate for the State and its official; and the ASG for the Union of India. The following points arise for determination in the case: (i) Whether the validity of a rule can be challenged in a PIL; (ii) Whether the petitioner has locus standi to challenge the Rules; (iii) Whether while framing the Rules, the Governor was to act in his own discretion or the Rules framed by the State Government and authenticated on his behalf are valid; (iv) Whether rules 12 and 15 the Rules are otherwise ultra vires. 1st POINT: DEPENDS ON THE NATURE OF PIL 9. The counsel for the respondents have placed reliance on Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and others; AIR 2004 SC 561 : (2003) 7 SCC 546 (the Guruvayoor case) and submit that validity of the Rules should not be entertained in a PIL. The Guruvayoor case 10. The administration of Shree Krishna temple, Guruvayoor was governed by a statute and rules framed therein. There were irregularities in the administration of the temple. A letter pointing out the irregularities was treated as the PIL, and a Commissioner was appointed by the High Court. 11. The Commissioner submitted reports about mismanagement in the administration of temples and certain directions were issued. These directions were subject-matter of challenge before the Supreme Court in the Guruvayoor case. 12. The Supreme Court drew curtain to the litigation but not without first praising the High Court in taking up the petition. It observed: Before parting with this case, however, we must compliment the High Court about the gigantic task undertaken by it leading to discovery of a number of irregularities in the matter of management of the temple detected in the process. We hope and trust that the judgment of the High Court would prove to be an eye-opener to the State and from now onwards it will be able to fulfill the hopes and aspirations of millions of devotees of Lord Krishna. 13. In deciding the Guruvayoor case, the Supreme Court also summed up (see paragraph 50) the principles evolved by the Court for entertaining a PIL. The respondents place reliance on sub-paragraph (xi) of this paragraph. 13. In deciding the Guruvayoor case, the Supreme Court also summed up (see paragraph 50) the principles evolved by the Court for entertaining a PIL. The respondents place reliance on sub-paragraph (xi) of this paragraph. It is as follows:- (xi) Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a Statutory Rule. 14. The word used here is ordinarily. This does not mean that in no case a PIL can- not be entertained challenging the validity of a statute or a rule. In our opinion, it depends on the facts and circumstances, as well as nature of the PIL. Let us consider if this is one of those cases that falls within the scope of the word ordinarily or not. 15. The scheduled tribes are most backward class of the society in our country. The fifth schedule was incorporated in Constitution to protect the tribes from exploitation and to preserve the land for their economic empowerment securing social, economic and political justice to them offering equality of status and opportunity to them thus promoting fraternity and dignity in our nation (See Samatha v. State of A.P. and others, reported in (1997) 8 SCC 191 : ( AIR 1997 SC 3297 ) (the Samatha case)). 16. In case there is a rule or statute that is against the welfare and the interest of the scheduled tribes and a PIL is filed challenging the same, then throwing out the PIL at the threshold on the ground that its validity cannot be seen in the PIL might deny them the valuable rights conferred upon them by the Constitution. If we do so, we would not only be failing in our duty in protecting their rights but will also be untrue to our oath. 17. In our opinion, a PIL for benefit of schedule tribes challenging a rule or a statute does not fall within the prohibition mentioned in paragraph 50 (xi) of the Guruvayoor case. It cannot be thrown out on this point. 2nd POINT: PETITIONER HAS LOCUS STANDI 18. The counsel of the Respondents submit that: The Petitioner is neither a ST nor lives in the scheduled tribe area; and He has no locus standi to challenge the Rules. 19. It cannot be thrown out on this point. 2nd POINT: PETITIONER HAS LOCUS STANDI 18. The counsel of the Respondents submit that: The Petitioner is neither a ST nor lives in the scheduled tribe area; and He has no locus standi to challenge the Rules. 19. The Petitioner is neither a scheduled tribe nor resides in the scheduled area but claims to be interested in the tribal welfare. He has filed the present petition claiming it to be for their benefit. 20. The scheduled tribes may be ignorant and not in a position to come forward to protect their rights. In case, a spirited citizen takes up a cause on their behalf, then we will be abdicating our power if we throw out the petition on the ground of locus standi. 21. The relevant point to see whether the petition is collusive or has it been filed for ulterior motives. If this is not so then declining to entertain the PIL would not be proper. 22. There are no reasons to believe that the writ petition is collusive or mala fide or for ulterior purpose. In our opinion, the writ petition should not be dismissed on the ground of locus standi. 3rd POINT: RULES COULD BE FRAMED BY STATE 23. Article 163 of the Constitution is titled Councils of Ministers to aid and advise Governor. It provides that the Governor is to act on the advise of Council of Minister (with Chief Minister as its head) except the functions that he is required to do in his discretion under the Constitution. 24. The Governor is the constitutional or formal head of the State. His satisfaction is not personal satisfaction but satisfaction in the constitutional sense. He exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers save in spheres where he is required by or under the Constitution to exercise his functions in his discretion. Pu Myllai Hlychho v. State of Mizoram, (2005) 2 SCC 92 , 98 (paras 12 and 15): AIR 2005 SC 1537 . 25. The Constitution itself provides where the Governor is required to Act in his own discretion or nature of his function is such that it cannot be undertaken on the advise of the Council of Minister. This is clear by use of words except in (cases where the Governor).... 25. The Constitution itself provides where the Governor is required to Act in his own discretion or nature of his function is such that it cannot be undertaken on the advise of the Council of Minister. This is clear by use of words except in (cases where the Governor).... is required to exercise his function.... in his discretion, he is to act on the advice of ministers. 26. The Constitution itself provides, when the Governor is required to act on his discretion e.g. The functions of a Governor, appointed to be Administrator of a Union Territory, under Art. 239(2); The power to make rules, under Art. 371A(1)(d); In the matters relating to Tuensang district, under Art. 371A(1)(f); The equitable allocation of money provided by the Government of India between parts of Nagaland (Art. 371A(2)(b)); and The power of the Governor of Assam under Para 9 of the Sixth Schedule. Unless a particular Article expressly provides for an obligation to be performed by the Governor to act in his discretion, it cannot be inferred by implication. Kapoor v. State of Punjab, (1955) 1 SCR 577 (587); Sanjeevi Naidu, A. v. State of Madras, AIR 1970 SC 1102 : (1970) 1 SCC 443 . 27. The Governor also has certain special responsibilities detailed under Arts. 371(2), 371A(1)(b), 371C, 371F(g). He discharges them according to directions issued by the President. In performing these duties, he need not consult his Council of Minister (see below for citation). Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (paras 16, 20, 138): (1974) 2 SCC 831 : 1974 (2) LLJ 465 . 28. There are also certain functions under the Constitution that cannot possibly be exercised by the Governor on ministerial advice, e.g.: Reporting to the President under Art. 356(1); Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (Paras 55, 138): (1974) 2 SCC 831 : 1974 (2) LLJ 465 . Reserving a Bill for consideration of President, under Art. 200(1), Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 (para 89): (1983) 4 SCC 45 . Here also, the Governor does not act on the advise of the Minister. 29. Paragraph 4(3) of the fifth schedule does not require the Governor to frame the Rules in his discretion. Reserving a Bill for consideration of President, under Art. 200(1), Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 (para 89): (1983) 4 SCC 45 . Here also, the Governor does not act on the advise of the Minister. 29. Paragraph 4(3) of the fifth schedule does not require the Governor to frame the Rules in his discretion. The framing of the Rules under this paragraph is not such a function that requires to be performed without advise of the cabinet of ministers. 30. In our opinion, the Rules framed by the State and authenticated in the name of the Governor are sufficient compliance of the Constitution. 4th POINT: RULES ARE NOT ULTRA VIRES 31. In the writ petition, the challenge is made to Rule 12 as well as Rule 15 of the Rules. A rule can be declared ultra vires only it is beyond the Rule making power, or if it contravenes any provisions of the Constitution. 32. Paragraph 4(3) of the fifth schedule empowers the Governor to frame the Rules. While deciding the third point we have already held that the Rules framed by the State Government and authenticated in the name of the Governor are sufficient compliance of law. They are within the rule framing power. Lets consider if they contravene any provision of the Constitution. Rule 12 is valid 33. Part-A of the fifth Schedule is titled as General and Part-B is titled as Administration and control of scheduled areas and scheduled tribes. In paragraph-3 of Part-B, the Governor is supposed to send a report to the President annually or whenever it is required by the President. The Union extends direction for governance to the State for administration of the scheduled area on the basis of this report. 34. Part-B of the fifth Schedule is titled as Administration and Control of scheduled areas and Scheduled Tribes. Paragraph-4 envisages a Tribes Advisory Council (the Council) to advise the Governor regarding governance of the area. It further provides that the Council shall consist not more than 20 members. 35. Out of 20 members of the Council, three-fourths are to be the representatives of the ST in the Legislative Assembly. Paragraph-4 envisages a Tribes Advisory Council (the Council) to advise the Governor regarding governance of the area. It further provides that the Council shall consist not more than 20 members. 35. Out of 20 members of the Council, three-fourths are to be the representatives of the ST in the Legislative Assembly. The first proviso to paragraph-4 of the fifth Schedule also provides that, if the number of representatives of the ST in the Legislative Assembly of the state is less than the number of the seats in the Council, then, the remaining seats shall be filled by other members of ST only. 36. Under sub-paragraph-2 of paragraph-4 (para 4(2)) of the fifth Schedule, the Council can discuss the matter only on the issues included in the notice for the proceeding. However, under rule 12 of the Rules, the Chairperson may permit such issues to be taken up for proceedings that he thinks necessary and are in the line of the motto of the Council at large, but were exclude in notice. 37. The motto of the Council as envisaged in the fifth Schedule is to advise the Governor for the welfare and advancement of the ST in the State that is to say the Council should take up those matters that are for the welfare and advancement of the ST and no others. 38. Under paragraph-4(2) of the Rules, the Council is required to provide the Governor on the matters pertaining to the welfare and advancement of the ST in the State, referred to the council by the Governor ie the Council is bound to advise the Governor in respect of the matters referred to it by the Governor. This is also mandate of the rule 12 of the Rules. 39. Rule 12 of the Rules merely provide that the Council can also discuss any matter relating to welfare of ST by the State, even though it might not be referred to it by the Governor provided the Chairperson considers it to be for the welfare of the ST. There is no prohibition in the Constitution from doing it. Rule 12 is not illegal. Rule 15 is valid 40. Rule 15 of the Rules is titled as Effect of vacant seats in the proceedings of the meetings. There is no prohibition in the Constitution from doing it. Rule 12 is not illegal. Rule 15 is valid 40. Rule 15 of the Rules is titled as Effect of vacant seats in the proceedings of the meetings. It merely provides that no member shall raise any objection in the proceedings of the meeting with respect to any seat of the Council being vacant, or any flaws or malpractice in the nomination of members. 41. Rule 3 of the Rules is entitled Set up of the Council. It provides that: The Council shall consist of 20 members, who shall be nominated by the Govenor; Out of these 20 members, three-fourths or 15 members shall be from the representatives of the ST in the Assembly; and The Chief Minister is to be the chairperson of the Council. 42. Rule 10 of the Rules is titled as Quorum. It provides that the quorum of the Council shall be of 5 members including the chairperson and no proceedings shall be taken if the quorum is not fulfilled. 43. The Council is creation of the Constitution and its composition is also basically provided therein; though finer details are provided in the Rules. Under the general law, constitution of the Council cannot be challenged in its meeting. It can only be challenged separately by taking appropriate legal proceedings. This is also so provided in rule 15. 44. The seats in the Council are filled-up by the Governor. Rule 15 of the Rules provides that in the proceedings of the meeting, no member shall raise any objection with respect to any vacancy or being vacant, or any flaws or malpractice in nomination of the members of the Council. It is merely clarification of the general law. There is no illegality in the same. 45. Nothing has been pointed out to show that these rules contravene any provision of the Constitution. In our opinion, the rules are valid and are not ultra vires. SOME OBSERVATIONS WHETHER ADVISE IS MANDATORY 46. During argument, some questions were raised whether the advise of the Council is binding on the Governor or not. In this regard, we wish to observe as follows. The State has filed its reply through Ms. Sharda Verma, Additional Director, SC and ST, Raipur. In paragraph-12 of the reply it has been stated that the Council merely advises the Governor for the welfare of the ST. 47-48. In this regard, we wish to observe as follows. The State has filed its reply through Ms. Sharda Verma, Additional Director, SC and ST, Raipur. In paragraph-12 of the reply it has been stated that the Council merely advises the Governor for the welfare of the ST. 47-48. Even otherwise, a bare reading of the Fifth Schedule indicates the same that the advice of the Council is not binding on the Governor. However, we need not go into this question as it is not involved in this case. CONCLUSIONS 49. Our conclusions are as follows: (a) The PIL has been filed for the benefit of the schedule tribes and for protection of the scheduled area; (b) The Court should not decline to entertain validity of the Chhattisgarh Tribes Advisory Council Rules, 2006 framed under paragraph 4(3) of Fifth Schedule of the Constution of India merely on the ground that it is a PIL; (c) The Governor while framing the rules under paragraph 4(3) of Fifth Schedule does not act in his discretion. The Chhattisgarh Tribes Advisory Council Rules, 2006 framed by the State Government and authenticated in the name of Governor are sufficient compliance of law; (d) The Rules do not violate any provision of the Constitution and are intra vires. In view of above, the writ petition has no merit. It is dismissed. Petition dismissed.