V.GOPALA GOWDA, CJ & S.C.PARIJA, J. W.P. ( C) NO.8840 OF 2009 (Decided on 09.07.2010) ADIVASIS FOR SOCIAL & HUMAN RIGHTS ACTION ………. Petitioner. .Vrs. UNION OF INDIA & ORS. ………. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.244(1) For Petitioner - M/s. A.P.Mohanty, K.C.Mohanty, D.K.Singh, S.K.Biswal & T.Sahu. For Opp.Parties - Mr. J.K.Mishra, Asst. Solicitor General-1) Mr. S.D.Das (Asst.Solicitor General-2) M/s. D.P.Dhal, S.K.Tripathy, K.Dash, S.K.Dash & P.K.Routray S.C. PARIJA, J. The petitioner who claims to be a registered Society, formed with avowed object of securing justice and well being of the members of Scheduled Tribes in the State, has filed this writ petition seeking enforcement of the rights of the Scheduled Tribes of Sundargarh district in the State of Orissa, guaranteed under Articles 14, 19(1) (e), 21 and 244 read with the Fifth Schedule to the Constitution of India. 2. The contention of the petitioner is that in a Scheduled Area none but the Scheduled Tribe has the right to settle down on the soil comprising the Scheduled Area. Hence, no person other than a Scheduled Tribe has the right to live in a Scheduled Area and every person not being a Scheduled Tribe is an unlawful occupant on the soil comprising the Scheduled Area and as such he cannot exercise the right to vote in any constituency in a Scheduled Area. 3. The other contention of the petitioner is that every constituency in a Scheduled Area, in the election to the House of People or State Legislative Assembly, should be declared as a reserved constituency under Articles 330 and 332 of the Constitution of India. According to the petitioner, no candidate other than a candidate who belongs to a Scheduled Tribe should have the right to contest election from any constituency created in the Scheduled Area, for being a member of the Legislative Assembly of a State or for being a member of the Parliament of India. In this regard, it is submitted that the representation of People’s Act 1950 and 1951 and the Delimitation Act, 2002 having not been made applicable to the Scheduled Areas of the State of Orissa by the Governor, in exercise of his power under sub-clause (1) of Clause (5) of Part ‘B’ of the Fifth Schedule to the Constitution, all elections held by the Election Commission in the Scheduled Areas of the State, by application of the provisions of the law made in the Representation of People’s Act, 1950 and 1951 is void. Accordingly, it is contended that no Act of the Parliament or of the Legislature of the State can apply to a Scheduled Area, unless the same is made specifically applicable by public notification made by the Governor of the State. 4. In the counter affidavit filed on behalf of the opposite parties 4, 5 and 6, it has been stated that the entire Sundargarh district in the State of Orissa has been declared as a ‘Scheduled Area’ by the President of India, in exercise of power conferred under sub-clause(1) of clause (6) of the Fifth Schedule, read with Article 244 (1) of the Constitution of India. However, it is not the law that any person who is not a Scheduled Tribe has no right to live in a area declared to be a Scheduled Area and that such area is wholly and exclusively reserved for the Scheduled Tribe only. It is further stated that the Fifth Schedule to the Constitution of India does not exclude the general population from living in the Scheduled Areas. On the other hand, clause 5(2) of the Fifth Schedule provides that the Governor of the State may make regulation which may (a) prohibit or restrict transfer of land by or amongst members of the Scheduled Tribes in such area, (b) regulate the allotment of land to members of the Scheduled Tribes in such areas and (c) regulate the carrying on of business as money lender by persons who lend money to members of the Scheduled Tribes in such area. 5. It has been averred in the counter affidavit that the Governor of Orissa has promulgated the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956, to control and check transfer of immovable property by the Scheduled Tribes in the Scheduled Areas of the State of Orissa, which is in force in the district of Sundargarh. 6. Coming to the plea of the petitioner that all constituencies in a Scheduled Area is to be reserved for the Scheduled Tribes, it has been stated in the counter affidavit that the Delimitation Commission was established by the Government of India under the Delimitation Act, 2002, to redraw the boundaries of various Assembly and Lok Sabha constituencies based on the recent census. The Delimitation Commission of India prescribed the guidelines and methodology of delimitation of Assembly and Parliamentary constituencies, which have been delimited on the basis of 2001 census. As per Section 9(1) (d) of the Delimitation Act 2002, seats for Scheduled Tribes are to be reserved in the constituencies in which the percentage of their population to the total population is the largest. Accordingly, out of 147 seats for Assembly constituencies in the State of Orissa, 24 seats have been reserved for Scheduled Castes and 33 seats have been reserved for Scheduled Tribes. As regard the entitlement of seats for Scheduled Tribes in the district of Sundargarh, it has been stated in the counter affidavit that keeping in view the 2001 census and the percentage of Scheduled Tribe population in the district, out of 7 seats for the Assembly constituencies in the district of Sundergarh, 5 seats have been reserved for Scheduled Tribes, in conformity with the provisions of the Delimitation Act 2002 and the guidelines issued thereunder. 7. Articles 330 and 332 of the Constitution of India provides for reservation of seats in the House of People (Lok Sabha) and the Legislative Assembly of the State, for Scheduled Castes and Scheduled Tribes, which shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State in the Lok Sabha and 2 the total number of seats in the State Assembly, as the population of the Scheduled Castes and Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. 8. Article 244 of the Constitution of India provides for administration of Scheduled Areas and Tribal Areas. Clause (1) of Article 244 provides that the provision of Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States specified therein. 9. Section 9(1) (c) and (d) of the Delimitation Act, 2002, provides that constituencies in which seats are reserved for Scheduled Castes or Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total population is the largest. 10. In the present case, as has been revealed in the counter affidavit, constituencies in the State of Orissa for State Assembly and Lok Sabha have been delimited on the basis of 2001 census. Taking into consideration the population of Scheduled Castes and Scheduled Tribes in proportion to the total population of the State, 24 seats have been reserved for Scheduled Castes and 33 seats have been reserved for Scheduled Tribes in the State Assembly. As per the provisions of the Delimitation Act, 2002, out of the 7 seats in the district of Sundargarh for the State Assembly, 5 seats have been reserved for Scheduled Tribes on the basis of the percentage of their population to the total population of the district is the largest. 11. The Fifth Schedule to the Constitution contains 7 clauses and consists of Parts A, B, C and D. Clause 6 in Part C deals with Scheduled Areas as the President may by order declare. Clause 5 of the Fifth Schedule deals with laws applicable to the Scheduled Areas. Sub-clause (1) of clause 5 provides that 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 exception and modification as the Governor may specify in the notification which may be given retrospective effect. 12. Sub-clause (2) of clause 5 of the Fifth Schedule provides that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Under Sub-clause (3) of clause (5) of the Fifth Schedule, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. 13. Admittedly, the entire district of Sundergarh has been declared as a ‘Scheduled Area’ by the President, in exercise of power conferred under clause 6(1) of the Fifth Schedule, read with Article 244(1) of the Constitution. The Governor of Orissa for the peace and good government of the Scheduled Area has promulgated the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956, to control and check transfer of immovable property in the Scheduled Areas of the State, in order to protect the rights of Scheduled Tribes. Similarly, the Orissa (Scheduled Areas) Debt Relief Regulation, 1967, has been promulgated to provide for relief from 3 indebtedness to the Scheduled Tribes in the Scheduled Areas of the State. All these regulations are in force in the district of Sundergarh, being a Scheduled Area. 14. From the above, it cannot be said that the Union or the State Government has failed to comply with the provisions of Article 244(1) read with Fifth Schedule of the Constitution. The plea of the petitioner that the entire Sundargarh district having been declared as a Scheduled Area, nobody else, except a Scheduled Tribe has the right to live in such a area is wholly erroneous and misconceived. Merely because an area has been declared to be a Scheduled Area under Part ‘C’ of the Fifth Schedule, the same does not imply that nobody else except a Scheduled Tribe has a right to live in the said area. 15. Coming to the plea of the petitioner that any Act of the Parliament or the State Legislature has to be made applicable to the Scheduled Areas by public notification to be issued by the Governor of State, under Part ‘B’ of the Fifth Schedule to the Constitution, in order to make the same operative in the Scheduled Area, the same is equally fallacious and misconceived and deserves outright rejection. What is provided under sub-clause (1) of clause 5 of the Fifth Schedule is that the Governor is empowered, notwithstanding anything in the Constitution, to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions or modifications, as the Governor may specify in the notification. Hence, only if any Central or State Act is not to be applied to a Scheduled Area or is to be applied to a Scheduled Area, subject to such exceptions and modification, the Governor of the State may specify the same in the notification. Hence, by necessary implication, it cannot be said that all Acts of the Parliament or the State Legislature can only apply to a Scheduled Area, if there is a notification to that effect by the Governor of the State. (See- Ram Kripal Bhagat and others –vrs- State of Bihar, AIR 1970 SC 951). 16. In view of the foregoing discussions, we do not find any merit in the contentions raised by the petitioner so as to warrant any interference by this Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition being devoid of merit, the same is accordingly dismissed. 4