SUNDARGARH ZILLA ADIVASI ADVOCATES ASSOCIATION AND OTHERSversusSTATE GOVERNMENT OF ODISHA AND ORS.

                        [2013] 6 S.C.R. 420


A         SUNDARGARH ZILLA ADIVASI ADVOCATES
                ASSOCIATION AND OTHERS
                                 v.
         STATE GOVERNMENT OF ODISHA AND ORS.
             (Writ Petition (Civil) No. 215 of 2012)
B
                            MAY 7, 2013
             [R.M. LODHA, J. CHELAMESWAR AND
                    MADAN 8. LOKUR, JJ.]

c       Constitution of India, 1950 - Part IX-A, Articles 243-ZC
  and 243-ZF, 244 and Schedule V items 5(1) and 6(1) -
  Scheduled area declared in terms of Clause 6(1) of the V
  Schedule - Applicability of the Orissa Municipal Act, beyond
  1st June, 1994 - After coming into force of Part IX-A of the
D Constitution w.e.f. 1st June 1993 - Held: In view of Art. 243-
  ZC, Part IX-A of the Constitution was not applicable to the
  Scheduled area in question - But the Act was made
  applicable to the area w.e.f. 31st May, 1994 by the issuance
  of a public Notification issued by the Governor in exercise of
E its power conferred under Clause 5(1) of the Fifth Schedule
  to the Constitution - In view of Art.243ZF, the Municipal Act
  can be applicable to the Scheduled area even beyond the
  period of one year; if it is not inconsistent with the provisions
  of Part IX-A - Since no provision of the Act is shown to be
F inconsistent with the provisions of Part IX-A, it would be
  applicable to the Scheduled area in question even beyond
  the period of one year - Orissa Municipal Act, 1950 -
  Notification SRO No. 74311995 dated 14th August, 1995.

       The question for consideration in the present writ
G pe,tition was whether the provisions of the Orissa
  Municipal Act, 1950 are applicable to 'Sundargarh' a
  di$trict in the State of Odisha, (a declared 'Scheduled
  Area' in terms of Clause 6(1) of the Fifth Schedule to the

H                               420
     SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.             421
            STATE GOVT. OF ODISHA

 Constitution, administration whereof is provided under         A
 Article 244 of the Constitution), on coming into force of
 Part IX·A of the Constitution.
      The contention of the petitioners was that on coming
  into force of Part IX-A, the Municipal Act, which was         B
  existing in the Scheduled area could not continue beyond
  a period of one year as provided in Article 243-ZF and
  therefore the existing Municipal Act could not have
  continued beyond 1st June 1994; and that since the
  Parliament has not extended the provisions of Part IX-A       C
  to the area of Sundargarh, nor had the Governor
  extended the provisions of Orissa Municipal Act to
  Sundargarh in exercise of power conferred by Clause 5
. of Fifth Schedule, provisions of the Municipal Act are not
  applicable to Sundargarh beyond 1st June, 1.994.
                                                                D
      Dismissing the petition, the Court
      HELD: 1. Clause 1 of Article 24'3-ZC of the
 Constitution of India provides that the provisions of Part
 IX-A of the Constitution do not apply to Scheduled Areas       E .
 such as Sundargarh. Clause 3 of Article 243-ZC provides
 that Parliament may, by law, extend the provisions of Part
 IX-A of the Constitution to Scheduled Areas such as
 Sundargarh subject to exceptions and modifications.
 Such a law has not been enacted by Parliament. Thus,
                                                                F
 Part IX-A of the Constitution which deals with the
 municipalities as institutions of self government does not
 apply to Sundargarh. There is also no statute relating to
 the extension of Part IX-A of the Constitution relating to
 municipalities to Scheduled Areas. [Paras 18 and 19]
 [430-E-F, H]                                                   G

     2. Clause 5 of Schedule V of the Constitution
 empowers the Governor of the State, inter alia, to issue
 a public Notification to the effect that: (a) Any particular
 statute (enacted either by Parliament or by the State          H
   422     8UPREME COURT REPORTS               [2013] 6 S.C.R.


A Leg'islature) shall not apply to a Scheduled Area; (b) Any
  particular statute (enacted either by Parliament or by the
  Sta,te Legislature) shall apply to a Scheduled Area,
  suljject to specific exceptions and modifications. [Para
  10) [426-G-H; 427-A]
B
       3. Therefore, in the absence of the application of Part
  IX-A of the Constitution to the Scheduled Area of
  Sundargarh, the Orissa Municipal Act, 1950 has been
  ma:de applicable with effect from 31st May 1994 by the
C issuance of a public Notification being SRO No.743/1995
  dated 14th August 1995 by the Governor in exercise of
  its powers conferred under Clause 5(1) of the Fifth
  Schedule to the Constitution. The provisions of Section
  12 of the Orissa Municipal Act (relating to the general
  election of councillors and formation of wards) have also
D been extended to the Scheduled Areas by a Notification
  being SRO No.1264/1995 dated 16th November 1995 with
  effect from 14th November 1995. These facts relating to
  the issuance of the two Notifications have not been
  denied by the petitioners [Paras 13 and 20) [427-E; 431-
E A•D]
        4. Article 243-ZF provides that any law relating to
  municipalities shall continue to apply even to a Scheduled
  Area for one year, except to the extent of inconsistency
F with the provisions of Part IX-A of the Constitution. Even
  beyond a period of one year, a law relating to
  municipalities may be applicable to a Scheduled Area, if
  tl)e law is so extended, provided it is not inconsistent with
  the provisions of Part IX-A. No provision of the Orissa
  Municipal Act is shown to be inconsistent with the
G p'rovisions of Part IX-A of the Constitution.[Para 21) [431-
  E-F]
       5. The purpose behind the introduction of Part IX-A in
  the Constitution has been achieved by the Orissa Municipal
H Act and the amendments made thereto, as extended to the
   SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.                     423
          STATE GOVT. OF ODISHA
Scheduled Areas. [Para 23] [432-C; 433-A]                             A
    Bondu Ramaswamy vs. Bangalore Development
Authority (2010) 7 SCC 129: 2010 (6) SCR 29 - referred to.
                      Case Law Reference:
                                                                      B
     2010 (6) SCR 29            Para 23 referred to

   CIVIL ORIGINAL JURISDICTION : Under Article 32 of The
Constitution of India.

     Writ Petition (Civil) No. 215 of 2012.                           c
     A.P. Mohanty, for the Petitioner.
     Sunil Kumar Krishnanad Pandeya, Jayesh Gaurav,
Amrender Kr. Choubey, Kumar Anurag Singh, Praiyanka, Anil
K. Jha, Binu Tamta, D.L. Chidananda, Sushma Suri, Jitendra            D
Kumar, Kirti Renu Mishra, Dr. Maya Rao for the Respondents.
     The Judgment of the Court was delivered by
     MADAN B. LOKUR, J. 1. The primary question for
consideration in this writ petition under Article 32 of the           E
Constitution is whether the provisions of the Orissa Municipal
Act, 1950 are applicable to Sundargarh district in Odisha.
     2. It is not in dispute that Sundargarh district is a declared
'Scheduled Area' in terms of Clause 6(1) ofthe Fifth Schedule
                                                                      F
to the Constitution. This Clause reads as follows:
     "6. Scheduled Areas.-(1) In this Constitution, the
     expression "Scheduled Areas• means such areas as the
     President may by order declare to be Scheduled Areas."
     3. The administration and control of a Scheduled Area is         G
provided for in Article 244 of the Constitution which reads as
under:-
     "244. Administration of Scheduled Areas and Tribal
     Areas: (1) The provisions of the Fifth Schedule shall apply      H
    424       SUPREME COURT REPORTS                    [2013] 6. S.C.R.


A         to the administration and control of the Scheduled Areas
          and Scheduled Tribes in any State other than the States
          of Assam Meghalaya, Tripura and Mizoram.

          (2) The provisions of the Sixth Schedule shall apply to the
          administration of the tribal areas in the State of Assam,
B
          Meghalaya, Tripura and Mizoram."

       4. What follows from this is that an area may be declared
  by the President as a Scheduled Area (as has happened in
  the case of Sundargarh) and the administration and control of
C that area is then governed by the Fifth Schedule to the
  Constitution.

       5. Scheduled Areas are also referred to in Part IX-A of the
  Constitution. This Part came into effect from 1st June 1993
D through the Constitution (Seventy-fourth Amendment) Act, 1992.
  This Part concerns itself with the establishment, constitution,
  powers and functions of municipalities as instituti9ns of self
  government. For the present purposes, we are concerned with
  Article 243-ZC and Article 243-ZF in Part IX-A. These
E provisions read as follows:

          "243ZC. Part not to apply to certain areas.-(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.
F
          (2) Nothing in this Part shall be construed to affect the
          functions and powers of the Darjeeling Gorkha Hill Council
          constituted under any law for the time being in force for the
          hill areas of the district of Darjeeling in the State of West
          Bengal.
G
          (3) Notwithstanding anything in this Constitution, Parliament
          may, by law, extend the provisions of this Part to the
          Scheduled Areas and the tribal areas referred to in clause
          (1) subject to such exceptions and modifications as may
H
    SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.   425
  STATE GOVT. OF ODISHA [MADAN B. LOKUR, J.]
    be specified in such law, and no such law shall be                 A
    deemed to be an amendment of this Constitution for the
    purposes of article 368."

    "243ZF. Continuance of existing laws and
    Municipalities.-Notwithstanding anything in this Part, any         B
    provision of any law relating to Municipalities in force in a
    State immediately before the commencement of the
    Constitution (Seventy-fourth Amendment) Act, 1992, which
    is inconsistent with the provisions of this Part, shall continue
    to be in force until amended or repealed by a competent            C
    Legislature or other competent authority or until the
    expiration of cine year from such commencement,
    whichever is earlier:

    Provided that all the Municipalities existing immediately
    before such commencement shall continue till the                   D
    expiration of their duration, unless sooner dissolved by a
    resolution passed to that effect by the Legislative
    Assembly of that State or, in the case of a State having a
    Legislative Council, by each House of the Legislature of
    that State."                                                       E

      6. A break-down of the provisions of Article 243-ZC of the
Constitution makes it clear that: (a) Part IX-A does not ipso
facto apply to Scheduled Areas [Article 243-ZC(1)]; (b)
Parliament may, by law, extend the provisions of Part IX-A to
                                                                       F
a Scheduled Area subject to exceptions and modifications
[Article 243-ZC(3)]. Factually, Part IX-A has not been extended
to the Scheduled Area of Sundargarh. In other words, Part IX-
A of the Constitution (with or without exceptions and
modifications) does not apply to the Scheduled Area of
Sundargarh.                                                            G

     7. Similarly, a break-down of the provisions of Article 243-
ZF of the Constitution makes it clear that: (a) The existing law
relating to municipalities will remain in force even if it is
inconsistent with the provisions of Part IX-A of the Constitution      H
    426       SUPREME COURT REPORTS                      [2013] 6 S.C.R.


A [first part of Article 243-ZF]; (b) However, the inconsistent
  provisions of the existing law will remain in force only for a
  period of one year, unless amended or repealed earlier
  (second part of Article 243-ZF]. Clearly, the purpose of
  continuing an existing law (even though it may be inconsistent
B with Part IX-A) was to enable necessary amendments to be
  made to the existing law to make it in consonance with Part
  IX-A.

       8. At this distant point of time, we are not concerned with
C the proviso to Article 243-ZF of the Constitution.

       9. If Part IX-A of the Constitution does not apply to a
  ScheQuled Area, how is the Scheduled Area of Sundargarh to
  be administered? For this, one as to fall back on the Fifth
  Schedule to the Constitution which specifically relates to the
D admioistration and control of Scheduled Areas. Clause 5(1)
  thereof is of relevance so far as the present case is concerned.
  This teads as follows:-

          •s. Law applicable to Scheduled Areas.-(1)
          Notwithstanding anything in this Constitution, the Governor
E
          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 or
          shall apply to a Scheduled Area or any part thereof in the
          State subject to such exceptions and modifications as he
F         may specify in the notification and any direction given under
          this sub-paragraph may be given so as to have
          retrospective effect.

          (2) xxx xxx xxx [dealing with regulations)."
G
        10. Clause 5 empowers the Governor of the State, inter
  alia, to issue a public notification to the effect that: (a) Any
  particular statute (enacted either by Parliament or by the State
  Legislature) shall not apply to a Scheduled Area; (b) Any
H particular statute (enacted either by Parliament or by the State
    SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.                     427
  STATE GOVT. OF ODISHA [MADAN B. LOKUR, J.]
Legislature) shall apply to a Scheduled Area, subject to specific     A
exceptions and modifications .
    . 11. In so far as the State of Odisha is concerned, an
amendment was carried out in the Orissa Municipal Act by
inserting sub-section (6) in Section 1 thereof to the following
effect:                                                               B

     "(6} Nothing in this Act shall apply to the scheduled areas
     referred to in Clause (1) of Article 244 of the Constitution."
    The aforesaid amendment was carried out through Orissa            C
Act No.11of1994-with effect from 31st May 1994.
     12. The effect of the above amendment was that the
Orissa Municipal Act was no longer applicable to Sundargarh,
a Scheduled Area, with effect from 31st May 1994. In a sense,
therefore, there was a vacuum in the administration and control       D
of the Scheduled Area of Sundargarh from 1st June 1994 since
neither Part IX-A of the Constitution nor the Orissa Municipal
Act were applicable to the Scheduled Areas in Odisha.
     13. Realizing the existence of a vacuum, the Governor of
Odisha issued Notification No. SRO No.743/95 dated 14th               E
August 1995 with effect from 31st May 1994. This was in
exercise of powers conferred on him by Clause 5(1} of the Fifth
Schedule to the Constitution. By virtue of this Notification, sub-
section (6} in Section 1 of the Orissa Municipal Act was
repealed and the said Act was extended to the Scheduled               F
Areas of the State.
     14. Unfortunately, this Notification has not been placed on
record by either of the partjes, though a reference to this is
made by the Union oflndia in its counter affidavit. Therefore, it
is appropriate to reproduce the Notification. It reads as follows:    G

           "Housing & Urban Development Department
                          Notification
                     The 14th August 1995
                                                                      H
    428      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A               S.R.O. No. 743/95- Whereas the Orissa Municipal
          Act, 1950 has been amended by Orissa Municipal
           (Amendment) Act, 1994 for strengthening the
          ,Municipalities and for giving effective and adequate
           representation to the Scheduled Castes, Scheduled
B         Tribes, Backward Class of citizens and Women;

                And, whereas, the constitution of the Municipalities
          prior to the commencement of the Orissa Municipal
          (Amendment) Act, 1994 has not been made in accordance
          with the amended provisions with regard to the
c         composition, reservation of seats and reservation of
          offices of the Chairpersons and Vice-Chairpersons of
          Municipalities for the Scheduled Castes, Scheduled
          Tribes, Backward Class of citizens and Women;

D               And, whereas, for the purpose of strengthening the
          Municipalities and giving effective and adequate
          representation to the Scheduled Castes, Scheduled
          Tribes, Backward class of citizens and Women in the
          Scheduled Areas of the State, it is considered expedient
E         to apply the provisions of the Orissa Municipal Act, 19?0
          as amended by the Orissa Municipal (Amendment) Act,
          1994 to the Scheduled Areas of the State of Orissa;

                 Now, therefore, in exercise of the powers conferred
          by sub-paragraph (1) of paragraph 5 of the Fifth Schedule
F         to the Constitution of India and in supersession of the
          notification of the Governor bearing No. 16222-Legis-
          H.U.D., dated the 28th May 1994 issued under the Housing
          & Urban Development Department of the Government of
          Orissa and published as S.R.O. No. 521/94, the Governor
G         of Orissa hereby directs that the provisions of the Orissa
          Municipal Act, 1950 (Orissa Act 23 of 1950) shall be
          deemed to have been applied to the Scheduled Areas of
          the State with effect from the 31st day of May 1994 subject
          to the following exception and modification, namely :-
H
   SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.   429
 STATE GOVT. OF ODISHA [MADAN B. LOKUR, J.]
     (1)    Sub-section (6) of Section 1 of the Orissa Municipal    A
            Act, 1950 shall be omitted; and

     (2)      Notwithstanding anything to the contrary in the
              Orissa Municipal Act, 1950, the term of office of
              every Councilor, Vice-Chairperson and                 8
              Chairperson of the Municipal Councils and Notified
              Area Councils existing in the Scheduled Areas of
            . the State immediately before the commencement
              of the Constitution {Seventy-fourth Amendment) Act,
              1992 shall be deemed to have come to an end with      C
              effect from the 2nd day of August 1995, and -

     (a)     during the period beginning with the 2nd day of
            August 1995 till the reconstitution of said Councils,
            the powers and duties of every such Council and
            Chairperson and Vice-Chairperson thereof shall be       D
            exercised and performed by such authority and in
            such manner as the State Government may, by
            notification, direct; and

      {b)     any action taken or thing done by the State           E
             Government under the Orissa Municipal Act, 1950,
             so applied to the Scheduled Areas of the State,
             shall be deemed to have been validly taken or done .
                                            •
                              [No. 27397-Elec.-37/95-H.U.D.]
                                              G. RAMANUJAM          F
                                          Governor of Orissa"

     15. In this constitutional and statutory background, the
contention urged by learned counsel for the petitioners is that
on the coming into force of Part IX-A of the Constitution, the      G
existing municipalities in Sundargarh district, that is,
Sundargarh, Rourkela, Rajgangpur and Birmitrapur could not
continue beyond a period of one year as provided in Article
243-ZF of the Constitution and therefore, their existence beyond
1st June 1994 was unconstitutional. The basic postulate of this     H
    430      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A   cont¢ntion is that the provisions of the Orissa Municipal Act are
    inconsistent with Part IX-A of the Constitution .

        .16. The further submission is that Parliament has not
  extended the provisions of Part IX-A of the Constitution to the
  Scheduled Area of Sundargarh nor has the Governor extended
8
  the provisions of the Orissa Municipal Act to Sundargarh district
  in exercise of power conferred by Clause 5 of the Fifth
  Schedule· to the Constitution. Therefore the provisions of the
  said Act are not applicable to Sundargarh district with the result
C that the continuance of the municipalities beyond 1st June 1994
  is illegal.

        17. We are unable to accept both contentions urged by the
  petitioners since they proceed on a misunderstanding of facts
  and the relevant provisions of the Constitution. We may also
D note that Notification No. SRO No. 743/95 dated 14th August,
  1995 is not under challenge.

        18. Clause 1 of Article 243-ZC provides that the provisions
  of Part IX-A of the Constitution do not apply to Scheduled Areas
E si:ich as Sundargarh. Clause 3 of Article 243-ZC provides that
  Parliament may, by law, extend the provisi.ons of Part IX-A of
  the Constitution to Scheduled Areas.- such as Sundargarh
  subject to exceptions and modifications. It is nobody's case that
  such a law has been enacted by Parliament. The only
  consequence of this is that Part IX-A of the Constitution which
F deals with the municipalities as institutions of self government
  <joes not apply to Sundargarh.

       19. This may be contrasted with the Provisions of the
  Panchayats {Extension to the Scheduled Areas) Act, 1996
G which specifically extends Part IX of the Constitution relating
  to panchayats introduced by the Constitution {Seventy-third
  Amendment) Act, 1992 to Scheduled Areas. There is no
  corresponding statute relating to the extension of Part IX-A of
  the Constitution relating to municipalities to Scheduled Areas.
H
   SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.                     431
 STATE GOVT. OF ODISHA [MADAN B. LOKUR, J.]
      20. Therefore, in the absence of the application of Part IX-    A
A of the Constitution to the Scheduled Area of Sundargarh, what
does apply is the Orissa Municipal Act, 1950. This Act has been
made applicable with effect from 31st May 1994 by the
issuance of a public notification being SRO No.743/1995 dated
14th August 1995. The petitioners seem to be oblivious of this        B
fact which has been stated by the Union of India in its counter
affidavit filed to the writ petition. It has further been stated by
the Union of India in its affidavit that the provisions of Section
12 of the Orissa Municipal Act (relating to the general election
of councillors and formation of wards) have also been extended        c
to the Scheduled Areas by a Notification being SRO No.1264/
1995 dated 16th November 1995 with effect from 14th
November 1995. These facts relating to the issuance of the two
notifications have not been denied by the petitioners by filing
any rejoinder affidavit. Therefore, the entire basis on which the     D
petitioners have built up their case is factually lacking.

      21. Apart from the above, learned counsel for the
petitioners has not shown us any provision of the Orissa
Municipal Act which is inconsistent with the provisions of Part
IX-A of the Constitution. Article 243-ZF provides that any law        E
relating to municipalities shall continue to apply even to a
Scheduled Area for one year, except to the extent of
inconsistency with the provisions of Part IX-A of the Constitution.
Even beyond a period of one year a law relating to
municipalities may be applicable to a Scheduled Area, if the          F
law is so extended, provided it is not inconsistent with the
provisions of Part IX-A. It is in this context that learned counsel
for the petitioners could not point out any provision in the Orissa
Municipal Act which is inconsistent with Part IX-A. The
contentions of learned counsel for the petitioners are presently      G
without any foundational basis, but we leave open this question
and express no opinion in this regard since Part IX-A has not
been made applicable to the Scheduled Area of Sundargarh.

     22. The interpretation of Article 243-ZC and Article 243-
                                                                      H
    432      SUPREME COURT REPORTS                   [2013) 6 S.C.R.

A ZF of the Constitution has come up for consideration in some
  High Courts from time to time but the issue raised before us,
  which is entirely factual in nature, has not come up for
  consideration earlier. It is, therefore, not necessary to advert
  to thQse decisions.
B
       23. Reference may, however, be made to Bondu
  Ramaswamy v. Bangalore Development Authority, (2010) 7
  sec 129 which explains the purpose behind the introduction
  of Part IX-A in the Constitution. This is what was said:

c         "The Constitution (Seventy-fourth Amendment) Act, 1992
          inserting Part IX-A in the Constitution, seeks to strengthen
          the system of municipalities in urban areas, by placing
          these local self-governments on sound and effective
          footing and provide measures for regular and fair conduct
D         of elections. Even before the insertion of the said Part IX-
          A, municipalities existed all over the country but there were
          no uniform or strong foundations for these local self-
          govemments to function effectively.

          "Provisions relating to composition of municipalities,
E         constitution and composition of Ward Committees,
          reservation of seats for weaker sections, duration of
          municipalities, powers, authority, responsibilities of
          municipalities, power to impose taxes, proper
          superintendence and centralised control of elections to
F         municipalities, constitution of committees for district
          planning and metropolitan planning, were either not in
          existence or were found to be inadequate or defective in
          the State laws relating to municipalities.

G         "Part IX-A seeks to strengthen the democratic political
          governance at grass root level in urban areas by providing
          constitutional status to municipalities, and by laying down
          minimum uniform norms and by ensuring regular and fair
          conduct of elections."
H
    SUNDARGARH ZILLA ADIVASI ADV. ASSO. v.                   433
  STATE GOVT. OF ODISHA [MADAN B. LOKUR, J.]

    This objective has been achieved by the Orissa Municipal         A
Act and the amendments made thereto, as extended to the
Scheduled Areas.

    24. In view of the factual position before us, we see no
merit in this writ petition. It is accordingly dismissed. No costs   8
K.K.T.                                 Writ Petition Dismissed.