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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2012
Sundargarh Zilla Adivasi Advocates
…..Petitioners
Association and Others
Versus
State Government of Odisha and Ors.
…..Respondents
J U D G M E N T
Madan B. Lokur, J.
1. The primary question for consideration in this writ
petition under Article 32 of the 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) of the Fifth
Schedule 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.”
Writ Petition (Civil) No.215 of 2012 Page 1 of 15Page 2
3. The administration and control of a Scheduled Area is
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 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, 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 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 through the Constitution (Seventy-fourth
Amendment) Act, 1992. This Part concerns itself with the
establishment, constitution, powers and functions of
municipalities as institutions of self government. For the
present purposes, we are concerned with Article 243-ZC
Writ Petition (Civil) No.215 of 2012 Page 2 of 15Page 3
and Article 243-ZF in Part IX-A. These 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.
(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.
(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 be specified in such law, and no such
law shall be 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 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
Legislature or other competent authority or
until the expiration of one year from such
commencement, whichever is earlier:
Provided that all the Municipalities existing
immediately before such commencement
Writ Petition (Civil) No.215 of 2012 Page 3 of 15Page 4
shall continue till the 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.”
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 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.
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 [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-
Writ Petition (Civil) No.215 of 2012 Page 4 of 15Page 5
ZF]. Clearly, the purpose of continuing an existing law
(even though it may be inconsistent 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
the proviso to Article 243-ZF of the Constitution.
9. If Part IX-A of the Constitution does not apply to a
Scheduled 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 administration and control of
Scheduled Areas. Clause 5(1) thereof is of relevance so
far as the present case is concerned. This reads as
follows:-
“5. Law applicable to Scheduled Areas.—
(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 or shall apply to a
Scheduled Area or any part thereof in the
State subject to such exceptions and modifications as he 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].”
Writ Petition (Civil) No.215 of 2012 Page 5 of 15Page 6
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 particular statute (enacted
either by Parliament or by the State Legislature) shall
apply to a Scheduled Area, subject to specific 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:
“(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
Act No.11 of 1994 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 of the Scheduled Area of
Sundargarh from 1st June 1994 since neither Part IX-A of
Writ Petition (Civil) No.215 of 2012 Page 6 of 15Page 7
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 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 Areas of the
State.
14. Unfortunately, this Notification has not been
placed on record by either of the parties, though a
reference to this is made by the Union of India in its
counter affidavit. Therefore, it is appropriate to
reproduce the Notification. It reads as follows:
“Housing & Urban Development Department
Notification
The 14th August 1995
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
Tribes, Backward Class of citizens and Women;
Writ Petition (Civil) No.215 of 2012 Page 7 of 15Page 8
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 composition, reservation of seats and
reservation of offices of the Chairpersons and ViceChairpersons of Municipalities for the Scheduled
Castes, Scheduled Tribes, Backward Class of citizens
and Women;
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 to apply the provisions of the Orissa
Municipal Act, 1950 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 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 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 :-
(1) Sub-section (6) of Section 1 of the Orissa
Municipal 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 Chairperson of the Municipal Councils and Notified
Area Councils existing in the Scheduled Areas of
Writ Petition (Civil) No.215 of 2012 Page 8 of 15Page 9
the State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992 shall be deemed to have come
to an end with 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 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
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
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 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
Writ Petition (Civil) No.215 of 2012 Page 9 of 15Page 10
June 1994 was unconstitutional. The basic postulate of
this contention 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 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 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 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
Writ Petition (Civil) No.215 of 2012 Page 10 of 15Page 11
Scheduled Areas 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. 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 deals with
the municipalities as institutions of self government does
not apply to Sundargarh.
19. This may be contrasted with the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act, 1996
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.
20. Therefore, in the absence of the application of
Part IX-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
Writ Petition (Civil) No.215 of 2012 Page 11 of 15Page 12
notification being SRO No.743/1995 dated 14th August
1995. The petitioners seem to be oblivious of this 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 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 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 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
Writ Petition (Civil) No.215 of 2012 Page 12 of 15Page 13
the Constitution. Even beyond a period of one year a law
relating to municipalities may be applicable to a
Scheduled Area, if the 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 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-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 those decisions.
23. Reference may, however, be made to Bondu
Ramaswamy v. Bangalore Development Authority,
(2010) 7 SCC 129 which explains the purpose behind
Writ Petition (Civil) No.215 of 2012 Page 13 of 15Page 14
the introduction of Part IX-A in the Constitution. This is
what was said:
“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 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-governments to
function effectively.
“Provisions relating to composition of municipalities, 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 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.
“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.”
This objective has been achieved by the Orissa Municipal
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.
Writ Petition (Civil) No.215 of 2012 Page 14 of 15Page 15
….…….……………………. J.
(R.M. Lodha)
….…….……………………. J.
(J. Chelameswar)
….…….……………………. J.
(Madan B. Lokur)
New Delhi;
May 7, 2013
Writ Petition (Civil) No.215 of 2012 Page 15 of 15
