JUDGMENT
S.J. Mukhopadhaya, J.
1. Although these cases have been heard on different dates and judgments/orders were kept reserved on different dates i.e., 8th, 9th and 10th August, 2005, since ‘they relate to reservation of the offices and seats of Chairpersons of Panchayats at all levels, all of them are being disposed of by this common judgment. Constitutional validity of certain provisions of “The Panchayat (Extension of Scheduled Areas) Act, 1996” (Act 40 of 1996) hereinafter to be referred as ‘PESA Act, 1996, certain provisions of Jharkhand Panchayat Raj Act, 2001 and Scheduled Areas (States of Bihar, Gujrat, Madhya Pradesh and Orissa) Order, 1977 have been challenged by the petitioners.
Prayer of the petitioners :
2. Petitioner Dhananjay Mahto of CWJC No. 3591 of 1997 (R) and petitioner Ganga Prasad Singh and others of WP (PIL) No. 3877 of 2002 have challenged the 2nd provision to Clause (g) of Section 4 of PESA Act, 1996, whereby and whereunder, all seats of Chairpersons of Panchayats at all level in the scheduled areas have been reserved for the Scheduled Tribes.
3. Petitioner Janardan Manki of WP (PIL) No. 1633 of 2002 has challenged the validity of Section 21(A)(1)(i), Section 22(D), Section 40(A)(1) and Section 55(A)(1) of Jharkhand’ Panchayat Raj Act, 2001, whereby and whereunder, all the offices and seats of Chairpersons at all levels in non-scheduled areas have been unreserved, treating the offices and seats of Chairperson as solitary seat.
4. Petitioner Raja Ram Mahto of WP (PIL) No. 747 of 2001 and petitioner Rakesh Kumar of WP (PIL) No. 2728 of 2002 while challenged Jharkhand Panchayat Raj Act, 2001, in general, at the time of argument, their counsel have confined their arguments in regard to validity of reservation up to 80 percent of the seats at Gram Panchayat and Zila Parishad level and have also questioned the validity of Sub-clause (6) to Article 243 of the Constitution of India, alleging it to be ultra vires to the Constitution.
5. In other writ petitions, petitioner Jharkhand Jamaitul Mominim of WP(C) No. 2148 of 2001, petitioners Shiv Kumar Sharma and others of WP (PIL) No. 1585 of 2002, petitioner Dharmendra Mahto of WP (C) No. 2097 of 2003 while challenged Jharkhand Panchayat Raj Act, 2001, as amended from time to time, in general, at the time of argument, their counsel have confined their argument by challenging Section 17(b), 21(B), 36(B), 40(B) and 55(B) of Jharkhand Panchayat Raj Act, 2001.
6. Petitioners Amar Kumar Mahto and Ors. of WP (PIL) No. 849 of 2002 have also prayed for a direction of the respondents not to give effect to the aforesaid Section 17(B), Section 21(B), Section 36(B) Section 40(B), Section 51(B) and Section 55(B) of Jharkhand Panchayat Raj Act, 2001 and to declare them ultra vires.
7. Petitioner Devendra Nath Champia of WP(C) No. 5939 of 2001 while challenged Jharkhand Panchayat Raj Act, 2001, have taken main plea that Panchayat election can not take place in scheduled areas, such as, ‘Kolhan areas’ within the district of Singhbhum West.
8. While similar challenge has been made by petitioner Adivasi Aatu Baisi Self Governance Committee of WP (PIL) No. 2993 of 2002 and petitioner Basudeo Besra of WP (PIL) No. 5740 of 2003, prayer has also been made for a declaration that the Jharkhand Panchayat Raj Act, 2001, as amended from time to time, is not applicable and is inoperative in the scheduled areas of Santhal Parganas and Chhotanagpur Divisions, alleging it to be ultra vires to Articles 243-M, 244(1) and 5th Schedule of the Constitution of India.
9. Petitioner Subhash Chandra Pradhan of WP (PIL) No. 2133 of 2002 while challenged ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1997, has also prayed to direct the respondents to re-demarcate various Panchayat Areas, situated within the district of West Singhbhum, and to declare them as non-scheduled areas, taking into consideration the geographical status, classification and other factors, including the population of the inhabitants of such Panchayat areas.
10. Petitioners Amar Kumar Mahto and Ors. of WP (PIL) No. 849 of 2002 has raised a question regarding validity of the aforesaid Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977.
Questions of law :
11. The questions, required to be determined, are :
(i) Whether cent-percent seats and offices of Chairpersons at all levels of Panchayats in the scheduled areas, reserved exclusively for Scheduled Tribes, is excessive, unreasonable, arbitrary and violative of Rules of Equality (Article 14 of the Constitution of India)?
(ii) Whether the seats and offices of Chairperson of Panchayats at all levels ‘ in non-scheduled areas, unreserved for contest, is unconstitutional ?
(iii) Whether 2nd proviso to Clause (g) of Section 4 of PESA Act, 1996; Sections 17(A), 11(A), 36(A), 40(A) and 55(A) as also Sections 17(B), 2(B), 36(B), 40(B) and 55 (B) of Jharkhand Panchayat Raj Act, 2001 are unconstitutional and thereby ultra vires ?
(iv) Whether it is mandatory on the part of the respondent State to reserve certain seats and offices of the Chairpersons of Panchayats at all levels in favour of women ?
(v) Whether Jharkhand Panchayat Raj Act, 2001, as amended from time to time, is applicable in scheduled areas, including ‘Kolhan areas’ and Godda, in particular, and Santhal Parganas and Chhotanagpur Division, in general ?
(vi) Whether Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, so far it relates to scheduled areas of Jharkhand State, is illegal and bad in law?
Short history of Panchayat Election and Act in the Areas, in question :
12. One ‘Bihar Panchayat Raj Act, 1947’ was enforced in the combined State of Bihar, including its scheduled areas. It was amended by ‘Bihar Panchayat Raj (Amendment) Ordinance, 1987’, whereby, reservation of seats of Panchayat was introduced. By Sections 2 and 3 of amended Ordinance, 1987, Sections 10 and 11 of Bihar Panchayat Raj Act, 1947 were amended. For the first time, the seats of Chairpersons (Mukhiya etc) were reserved. A Full Bench of Patna High Court in the case of Janardan Paswan v. State of Bihar, repprted in while held that solitary seat of Chairperson (Mukhiya etc.) can not be reserved, held the amended Sections, as aforesaid, unconstitutional.
13. The concept of Panchayat was thought by the framers of the Constitution at the time of its framing as is evident from Part IV. Article 40 of the Constitution, which enshrines one of the directive principles of State policy and lays down organization of village Panchayats and casts duty on the State to take steps to organize village Panchayats and endow them with such powers and authority, as may be necessary to enable then to function as units of Self-Government.
14. Though the Panchayat Raj institutions have been in existence, it was found that those institutions had not been able to acquire the status and dignity of viable and responsive people bodies, due to a number of reasons, including absence of regular election, prolonged supersession, insufficient representation of weaker section like Scheduled Casts,” Scheduled Tribes and Women, inadequate devolution of powers and lack of financial resources. Keeping in view such statement of objects and reasons, a new Part IX relating to Panchayats was inserted in the Constitution by The Constitution (Seventy-third Amendment) Act, 1982, comprised of Article 243 to Article 243-O. Those provisions do not apply automatically to the Scheduled areas and tribal areas. Article 243-M prohibits application of its provision in scheduled areas and tribal areas. However. Article 243-M(4)(b) makes the provision, enabling the Parliament, by law, to extend the provision of Part IX, subject to such exceptions and modifications, as may be specified in such law. For the first time, constitutional provision was made under Article 243-D, reserving the seats of Panchayats in favour of weaker sections, such as, Scheduled Castes, Scheduled Tribes and Women. Consequent upon the changes incorporated in Constitution, the then combined State of Bihar enacted ‘Bihar Panchayat Raj Act, 1993’, superseding Bihar Panchayat Raj Act, 1947. It was made applicable only in non-scheduled areas. Seats and offices of Chairpersons, such as, Mukhiya Up-Mukhiya, Pramukh Up-Pramukh and Adhyuaksh-Upadhyaksh, cent-percent of which were reserved, were held to be unconstitutional on the ground of excessive reservation and violative of Article 14 of the Constitution of India, by a Division Bench of Patna High Court in the case of Krishna Kumar Mishra v. State of Bihar, reported in 1996(1) PLJR 581.
15. A Committee of Member of Parliament and Experts, commonly known as ‘Bhuria Committee’ was constituted by the Central Government to make recommendation of the salient features of the law to extend the provisions of Part IX of the Constitution to the fifth Scheduled areas. The Committee considered, in detail, various aspects of the issues, involved in the proposed law and made different proposals, including the following observations and suggestions :-
“27. We know of certain districts which are not tribal- majority districts; in the sense that scheduled tribe people do not constitute more than 50% of the total population of the district. But the STs are concentrated in a part or parts of the district, say in some blocks or a sub-division or sub-divisions. If the tribal population in these units is substantial in absolute terms, there is no reason why analogous arrangements should not be ushered in such areas Councils to be formed for such areas could be termed as Autonomous sub-District Councils (ASDCs). ASDCs should be conferred powers and functions at par with those of ADCs. However, this may regarded as an interim arrangement, pending reorganization of administrative boundaries which we have recommenced elsewhere in this report. As we have mentioned there, the reorganization should be completed within a couple of years.
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30. The Group was further of the view that notwithstanding the fact that the areas under consideration i.e., Scheduled Areas are expected to have majority of tribal population, it is necessary to stipulated that the Panchayats therein will have a majority of Scheduled Tribe members. The reasons is that the Scheduled Areas were notified as such on account of majority of Scheduled Tribe population, continguity etc. In course of time, on account of influx of non-ST population, in a few Scheduled Areas, the status of the ST population might have been reduced to minority. That should not be regarded to have altered over all the character of the Scheduled Areas. The chairman and vice-chariman should belong to scheduled tribes, One-third of the seats should be reserved for women.”
16. The Parliament having taken into consideration such report, enacted an Act, extending the provisions of Part IX of the Constitution, relating to Panchayats to the scheduled areas, known as The Provisions of Panchayats (Extension of Scheduled Areas) Act, 1996′ (Act No. 40 of 1996) hereinafter to be referred as ‘PESA Act, 1996’, published in Extraordinary Gazettee of India on 24th December, 1996.
17. The combined State of Bihar was re-organized in pursuance of Bihar Re-organization Act, 2000 and successor Stats of Bihar and Jharkhand were created since 15th November, 2000. After creation, the scheduled areas of the then combined State of Bihar fell within the territory of successor State of Jharkhand, Part IX of the Constitution, relating to Panchayats had already been extended to the scheduled areas by Parliament vide PESA Act, 1996. With a view to set up democratic institutions at grass-roots level, Government of Jharkhand enacted Jharkhand Panchayat Raj Act, 2001 (Act No. 6 of 2001) for both scheduled and non-scheduled areas, which was published in the Extraordinary Gazette on 10th May, 2001, as amended from time to time.
18. Article 243-B, inter alia, provides for constitution of Panchayats in every. State at village intermediate and district level. Article 243-C provides composition of Panchayats. Article 243-D while mandates reservation of seats of Panchayats at all level in favour of Scheduled Castes and Scheduled Tribes, stipulates that all seats in the Panchayats at all levels are to be filled up by persons, chosen by direct election. So far as reservation in favour of Scheduled Castes and Scheduled Tribes is concerned, while seats of Panchayats at all levels are to be reserved, proportionate to the population of Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area, at least l/3rd of the total number of reserved seats of Panchayats are required to be reserved for women, belonging to Scheduled Castes or Scheduled Tribes, as the case may be. Similarly at least 1 /3rd of the total number of seats of Panchayats, including the seats, reserved for women belonging to Scheduled Castes and Scheduled Tribes, are to be reserved for women. Such seats by reservation are to be allotted by rotation to different constituencies in a Panchayat.
19. So’ far as reservation of seats of the offices of Chairpersons is concerned, they have been reserved for the Scheduled Casts and Scheduled Tribes in the Panchayats at all levels, proportionate to the population of Scheduled Castes and Scheduled Tribes of the State, but at least 1 /3rd of the total number of the offices of the Chairpersons in the Panchayat at each level shall be reserved for women.
20. Though such reservation has been made under Article 243-D of the Constitution, but while Part IX of the Constitution, including Article 243-D, was extended in the scheduled areas vide PESA Act, 1996. it was extended with certain exceptions and modifications : Under clause (g) of Section 4 while reservation of the seats in the scheduled areas at every Panchayat has been made in proportionate to the population of the communities (Scheduled Castes and Scheduled Tribes) for whom reservation is sought to be given under Part IX, it has been ordered that all seats of Chairpersons in Panchayat at all level shall be reserved for the Scheduled Tribes.
21. The State Government while enacted Jharkhand Panchayat Raj Act, 2001, as amended from time to time, also exercised power under Clause 6 of Article 243-D of the Constitution, reserving certain seats of Panchayats in favour of other Backward category. Under Section 17 while reservation has been made in favour of Scheduled Castes and Scheduled Tribes for the seats of Gram Panchayats, proportionate reservation has been made in favour of Scheduled Castes and Scheduled Tribes, both for scheduled and non-scheduled areas, proportionate to the population of Scheduled Castes and Scheduled Tribes. In Panchayats while minimum 50 percent of seats has been reserved for Scheduled Tribes in the scheduled areas, reservation in favour of other Backward Classes, proportionate to their population in the Panchayats, has also been allowed in the scheduled areas, with a limit of maximum 80 percent. In non-scheduled areas, reservation in favour of Scheduled Castes and Scheduled Tribes, if jointly found to be less than 50 percent, the remaining seats have been reserved for other Backward category, proportionate to their population in the Panchayats, but with a limit of 50 percent reservation. Similar reservation has been made at other levels, such as, Panchayat Samiti level under Section 36 and Zila Parishad level under Section 51.
22. So far as the seats and offices of the Chairpersons are concerned, provisions for reservation have been made under Sections 21, 40 and 55 of the Jharkhand Panchayat Raj Act, 2001. Curiously enough, the seats and offices of Chairpersons in the non-scheduled areas have not been reserved on the ground that the seat of a Chairperson is solitary seat. This will be evident from Sections 21 (A), 40(A) and 55(A) of Jharkhand Panchayat Raj Act, 2001. On the other hand, such seats and offices of Chairpersons of Scheduled areas have not been treated as solitary seats and cent percent reservation of the seats and offices of all Chairpersons at all levels have been made, as is evident from Sections 21(B), 10(B) and 55{B) of the Jharkhand Panchayat Raj Act, 2001.
23. From Section 22(D) of the Jharkhand Panchayat Raj Act, 2001 it appears that office of Up-Mukhiya (one of the Chairpersons) has been treated to be solitary seat and it has also been kept unreserved for both scheduled and non-scheduled areas, though it is shown to be reserved for scheduled areas under Section 21(B) of the Jharkhand Panchayat Raj Act, 2001.
Scheduled Areas :
24. History of scheduled areas can be traced out from British India period, ‘Scheduled Districts Act, 1874’ (Act XIV of 1874) was enacted, declaring Santhal Parganas and Chutia Nagpur Division now known as Chhotanagpur Division) both. now fall within the territory of Jharkhand, as “sched aled districts” of Bengal. Generally tribal communities themselves regulate their politico-socio-legal affairs on the basis of principles, procedures, practices, norms, conventions, traditions, precedents etc. They choose their leader (Tribal Chief), based on uniformal consensus or selection by the people of the village. Decision making also has been through consensus. The Traditional Practices process and procedures of tribal communities are different from others i.e., non-tribal. In the State of Jharkhand, in different scheduled areas, a Gram Sabha is continuing since long, which represent such an entity at village or hamlet level. Over and above it, a group of villages or hamlets are existing, which are called as Parganas or Anchal or Parha. The tribal communities are managing their affair’s all through the ages. Provision for administration of scheduled areas and Scheduled Tribes are contained in Article 244(1) and Fifth Schedule of the Constitution. The major features of Fifth Scheduled, in the present context, are Governor’s power to adopt laws, passed by Parliament and State Legislature and making regulations for the scheduled areas, having the force of law, and extension of executive power of the Union Government to give direction to the State for administration of scheduled areas. The Governor, by notification, may also direct that any particular Act by Parliament or any 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.
25. In exercise of powers, conferred by Sub-paragraph (i) of Paragraph 6 of the Fifth Schedule to the Constitution of India, the President of India made an order in the year, 1950, known as The Scheduled Area (Part A States) Order, 1950′. In the then combined State of Bihar Ranchi district, Singhbhum district, excluding Dalbhum sub-division, Santhal Pargana district, excluding Godda and Deoghar sub-divisions and Latehar sub-division of Palamau district were declared to be the scheduled areas vide notification, published on 26th January, 1950. All the aforesaid districts and sub-divisions now fall within the territory of Jharkhand. In exercise of power, conferred by sub-paragraph (ii) of paragraph 6 of the Fifth Schedule, the President while rescinded ‘The scheduled area (Part A States) Order, 1950′, so far it relates to the then combined State of Bihar and some other States, was pleased to make an order, known as The Scheduled Areas (State of Bihar Gujarat, Madhya Pradesh and Orissa) Order, 1977’. By the said Order, Ranchi district; Singhbhum district; Latehar subdivision; and Bhandaria block of Garhwa sub-division in Palamau district; Dumka; Pakur; Rajmahal and Jamatra sub-divisions and Sundarpahari and Boarijor blocks of Godda sub-divisions in Santhal Pargana district were shown as scheduled areas of the then combined State of Bihar, all of which now fall within the territory of Jharkhand.
26. Some new States, including Chhatisgarh and Jharkhand having coming into existence, the President of India, in exercise of power, conferred by sub-paragraph (ii) of paragraph 6 of the Fifth Schedule of the Constitution of India, rescinded the scheduled areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, in so far it relates to the areas, comprising the States of Chhatisgarh, Jharkhand and Madhya Pradesh and in consultation with the Governors of the States concerned made a new order, known as “The Scheduled Areas (States of Chhatisgarh, Jharkhand & Madhya Pradesh) Order, 2003.
Submissions, as made on behalf of the parties :
27. Counsel for the petitioners of CWJC NO. 3591 of 1997(R), WP (C) No. 2148 of 2001, WP (PIL) No. 1585 of 2002, WP (C) No. 2097 of 2003, WP (PIL) No. 747 of 2001, WP (PIL) No. 2728 of 2002 and WP (PIL) No. 3877 of 2002 made the following submissions :
(i) Every eligible candidate has a right to vote and has a right to contest election as a candidate for the seats and offices of Chairpersons. Cent percent reservation of seats of Chairpersons in scheduled areas amounts to curtailment of rights of the eligible candidates, other than the Scheduled Tribes, to contest such election.
(ii) The seats and offices of Chairpersons, such as, Mukhiya-Up-Mukhiya, Pramukn-LJp-Pramukh and Adhyaksh-Upadhyakahs, being solitary seats of individual Panchayat units, can not be reserved.
(ill) Even if for the sake of argument, it is accepted that the seats and offices of Chairpersons can be reserved in favour of Scheduled Tribes, cent percent reservation, being excessive, unreasonable and violative of the Rules of Equally, is not permissible.
(iv) Cent percent reservation of seats and offices of Chairperson in favour of Scheduled Tribes in the scheduled areas is violative of Article 243-D and Article 14 of the Constitution of India.
Counsel for the petitioner of WP (PIL) No. 1633 of 2002 submitted as follows :
(v) All the seats and offices of Chairpersons in non-scheduled area can not be unreserved, treating such offices of Chairpersons as solitary seats. Non-reservation of seats and offices of Chairpersons in favour of Scheduled Castes and Scheduled Tribes is unconstitutional, being violative of Clause 4 of Article 243-D of the Constitution of India.
28. In the case of Devendra Nath Champia (CWJC No. 5939 of 2001) counsel for the petitioner submitted as follows :
(vi) Jharkhand Panchayat Raj Act, 2001, being in conflict with the customary law of ‘Kolhan Area’, can not be given effect to nor such law can be applied in the ‘Kolhan Area’.
29. On behalf of the petitioners of WP (PIL) No. 2993 of 2002 & WP (PIL) No. 5740 of 2003 following submissions have been made :
(vii) Jharkhand Panchayat Raj Act, 2001, can not be given effect to and is to be treated inoperative in the scheduled areas of Santhal Parganas and Chhotanagpur Division, in view of bar, imposed under Article 243-M of the Constitution of India.
On the other hand, following arguments have been advanced on behalf of the petitioner of WP (PIL) No. 2133 of 2002 :
(viii) The ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977’, declaring various Panchayat areas as scheduled areas, without taking into consideration the geographical status, popular on of inhabitants of such Panchayats, classification and other factors, should be declared bad in law.
(ix) The respondents should, redemarcate various Panchayat areas for fresh determination of Scheduled and non-scheduled areas, taking into consideration the geographical status, classification, population of the inhabitants etc.
Validity of the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 :
30. Before deciding the other issues, as raised in these cases, and before considering the submissions, made on behalf of one or other petitioner, it is desirable to notice one fact for disposal of WP (PIL) No. 2133 of 2002, wherein, ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977’ has been challenged. While dealing with the ‘Scheduled Areas’, it has already been noticed and discussed that the President of India, in exercise of powers, conferred by sub-paragraph (i) of paragraph 6 of the Fifth Schedule to the Constitution of India, initially made an order in the year, 1950, known as ‘Scheduled Area (Part A States) Order, 1950’, which was rescinded by The Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977. Thereafter, Chhatisgarh and Jharkhand having come into existence, the President of India, in exercise of powers, conferred by sub-paragraph (ii) of paragraph 6 of the Fifth Schedule to the Constitution of India, rescinded the aforesaid ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, in so far as it relates to the areas, comprising the States of Chhatisgarh, Jharkhand and Madhya Pradesh. A new order, known as The Scheduled Areas (States of Chhatisgarh, Jharkhand and Madhya Pradesh) Order, 2003’ has been issued. The following areas of the State of Jharkhand have been declared scheduled areas :
1. Burhmu, Mandar, Chanho, Bero, Lapung, Namkom, Kanke, Ormanjhi, Angara, Silli, Sonahatu, Tamar, Bundu, Arki, Khunti, Murhu, Karra, Torpa and Raniya blocks within the district of Ranchi.
2. Kisko, Kuru, Lohardaga, Bhadra and Senha blocks within the district of Lohardaga.
3. Bishanpur, Ghaghra, Chainpur, Dumri, Raidih, Gumla, Sisai, Kagdara, Basiya and Palkot blocks within the district of Gumla.
4. Simdega, Kolebira, Bano, Jaldega, Thethetangar, Kurdeng and Bolba blocks within the district of Simdega.
5. Barwadih, Manika, Balumath, Chandwa, Latehar, Garu and Mahuadaran blocks within the district of Latehar.
6. Bhandariya block within the district of Garhwa.
7. Bandgaon, Chakradharpur, Sonuwa, Goyalkera, Mahoharpur, Noamundi, Jagannathpur, Manghgaon, Kumardungi, Manjhari, Tatnagar, Jhinkpani, Tonto, Khutpani and Chaibasa blocks within the district of West Singhbhum.
8. Govindpur (Rajnagar), Adityapur (Ghamariya), Seraikela, Kharsaan, Kuchai, Chandil, Ichagarh and Nimdih blocks within the district of Seraikella Kharsawan.
9. Golmuri-Jugslia, Patmada, Potka, Dumariya, Musabani, Ghatsila, Dhalbhumgarh, Chakuliya and Bahragora blocks within the district of East Singhbhum. .
10. Sariyahat, Jarmundi, Jama, Ramgarh, Gopikandar, Kathikund, Dumka, Sikripara, Raneshwar and Masaliya blocks within the district of Dumka.
11. Kundhit, Nala, Jamtara and Narayanpur blocks within the district of Jamtara.
12. Sahebganj, Boriyo, Taljhari, Rajmahal, Barharwa, Pathna and Barhet blocks within the district of Sahebganj.
13. Littipara, Amrapara, Hiranpur, Pakur, Maheshpur and Pakuriya blocks within the district of Pakur.
14. Borijore and Sundarpahari blocks within the district of Godda.
31. The aforesaid ‘Scheduled Areas (States of Chhatisgarh, Jharkhand and Madhya Pradesh) Order, 2003 having been issued and the ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, having been rescinded, it is not necessary to give any finding in regard to the superseded ‘Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa), Order, 1977. The writ petition being WP (PIL) No. 2133 of 2002 has become infructuous to this extent.
32. So far as issuance of writ of mandamus to the respondents to re-demarcate the Panchayat areas, taking into consideration the geographical status, population of the inhabitants, classification and other factors, is concerned, no specific direction can be given, the power to declare any area as scheduled area being vested with the President of India, who may issue order, in exercise of power, conferred, by sub-paragraphs (i) and (ii) of paragraphs 6 to the Fifth Scheduled of the Constitution of India. These areas are treated differently from the other areas of the country, because they are inhabited by ab- originals, who are socially and economically backward. To improve their condition, special efforts need to be made. Therefore, instead of applying the general law, power has been vested with the Governor of the State to direct, by public notification, that any particular Act of Parliament or State Legislature of the State shall not apply to the scheduled areas or any part thereof in the State, subject to such exceptions and modifications, as he may specify in the notification. The Central Government can give direction to the State regarding the administration of such areas, it having greater responsibility for these areas. Generally the scheduled area is determined on the basis of tribal population in a particular village/hamlet or block or Pargana or district. Scheduled areas are expected to have majority of tribal population, contiguity etc. Even if in course of time, on account of influx of non-scheduled tribe population in a few scheduled areas, the status of the Scheduled Tribes population has been reduced to minority, that should not be regarded to have altered overall the character of the scheduled areas.
33. Much stress was given by one or other counsel to suggest that there are Panchayats or blocks where although the population of Scheduled Tribes is negligible, they have been declared as scheduled areas. Though such general submission was made, no detailed date was produced. Therefore, it is not possible for this Court to give any finding in one or other way with regard to individual Panchayat or block or district as to whether they have been rightly included in the Scheduled areas or not.
34. Inspite of the aforesaid fact, with a view to have sortie idea of the scheduled areas, this Court has noticed the date, as shown in one pf the books ‘Land and People of Jharkhand’, written by Dr. Prakash Chandra Oraon, as published in the year, 1961, revised and enlarged Edition, 2003. The Court has also gone through another book ‘Inside Jharkhand’ by Dr. Sunil Kumar Singh (Crown Publication), 1st Edition, 2005. From the aforesaid books, the following facts emerge.
35. The tribal population of Jharkhand is 7,087,068 (2001 census). The tribal living in Jharkhand are Santhal, Oraon, Munda, Hos, Lohra, Kharwar, Kharia, Bhoomij, Mahli, Mal-Paharias, Bedia, Gond, Chero, Chik-Baraik, Sauria-Paharia, Karmali, Kora, Paharia, Kisan, Korwa, Binjhia, Asur, Gorait, Birhor, Birijia, Baigis, Sawar, Bathudi, Khond and Banjara.
36. Jharkhand has 26.3 percent tribal population and 11.8 percent Scheduled Caste population (census 2001). The districtwise population of Scheduled Tribes and its percentage as per 1991 census are as follows :
_____________________________________________________ District Population of S.T. Percentage of S.T. Ranchi 99.44,22 43.56% Lohardaga 16,29,64 56.41% Gumla 49,35,63 69.76% Simdega 3234,25 72.45% Latehar 21,15,80 45.30% Palamau 10,62,54 9.98% Garhwa 12,54,32 15.65% West Singhbhum 70,77,08 65.48% Seraikella 27,03,61 38.23% East Singhbhum 46,65,72 28.92% Dumka 44,32,85 46.62% Jamtara 17,81,99 32.70% Sahebganj 22,89,90 31.08% Pakur 27,83,31 49.33% Godda 21,60,47 25.09% Hazaribagh 22,35,71 12.18% Chatra 23,487 3.83% Koderma 3,528 0.89% Giridih 14,83,44 9.91% Dhanbad 17,17,41 8.81% Bokaro 17,71,23 12.18% Deoghar 11,90,85 12.76% _____________________________________________________ Grand Total 60,44,012 27.67% (State of Jharkhand) _____________________________________________________
37. The Scheduled Areas (States of Chhatisgarh, Jharkhand and Madhya Pradesh) Order, 2003, shows that only blocks of certain district, altogether 14 districts, have been declared as scheduled areas of the State of Jharkhand. From the said Order, it will be evident that the population of scheduled tribes in eight of the districts, namely, Dhanbad, Koderma, Giridih, Hazaribagh, Deoghar, Chatra, Bokaro and Palamau, being less or negligible, none of these districts nor any of the blocks of these districts has been declared as scheduled areas. Out of fourteen districts block of which have been declared as scheduled areas, in the district of Garhwa, only one block has been declared scheduled area and rest of the blocks have not been declared scheduled areas, population of Scheduled Tribe being less or negligible. Similarly only two blocks of Godda district, four blocks of Jamtara district and six blocks of each of the districts of Dumka and Pakur have been declared as scheduled areas. Rest of blocks of these districts, such as, Garhwa, Dumka, Jamtara, Pakur and Godda have not been declared as scheduled areas, population of Scheduled Tribe being less or negligible in other blocks. Therefore, it cannot be stated that the Scheduled Areas (States of Chhatisgarh, Jharkhand and Madhya Pradesh) Order, 2003 is not based on the date of Scheduled Tribe population.
38. Silli block in the district of Ranchi has been cited as one of the examples. It was submitted that though the population of Scheduled Tribes is negligible in the Silli block of Ranchi district, it has been included in the scheduled area and the seats of Chairpersons have been reserved. From the 1991 census, the following fact emerges :
_________________________________________________________ Name of the block Population of ST. Percentage of S.T. Burmu 34252 29.09 Mandar . 48108 1.00 Chanho 34529 4.18 Bero 60553 58.35 Lapung 33917 72.76 Ratu 49166 50.59 Namkom 59314 4.86 Kanke 171952 23.28 Ormanjhi 22508 36.00 Angara 47590 53.74 Silli 25152 26.66 Sonahatu 20285 24.37 Tamar 43904 44.29 Bundu 29689 47.95 Arki 49146 79.36 Khunti 55302 65.81 Murhu 50559 80.64 Karra 57578 73.08 Torpa 48250 72.26 Rania 22668 70.61 Total (Ranchi) 964422 43.56 _________________________________________________________
39. From the aforesaid census report, it can not be stated that the population of Scheduled Tribes in the ‘Silli’ Block is neg ligible, which is 26.66 percent. Though it appears that in some of the blocks like Mandar, Chanho and Namkom, the population of Scheduled Tribe is less than 5 percent, but in view of the total population (43.56%) of the Scheduled Tribe in the district of Ranchi, if one or other block has also been included within the scheduled areas for the purposes of continuous blocks, it can not be held to be illegal. Though it is always open to the Governor of the State to report the President of India for exclusion of one or other block from the scheduled area.
40. In view of the aforesaid findings, no relief can be granted to the petitioner of WP (PIL) No. 2133 of 2002 Prayer of the petitioner in the present writ application is, accordingly rejected.
Applicability of Jharkhand Panchayat Raj Act, 2001 in Scheduled Areas :
41. So far as WP (PIL) No. 2993 of 2002, preferred by Adivasi Aatu Baisi SelfGovernance Committee and WP (PIL) No. 5740 of 2003, preferred by Basudeo Besar and Ors., are concerned, their prayer for declaration that the Jharkhand Panchayat Raj Act, 2001, as amended from time to time, is not applicable and is inoperative in the’ scheduled areas of the State of Jharkhand can not be accepted. It is true that Part IX of the Constitution of India, including Article 243 to 243-O, is not applicable to the scheduled areas and the tribal areas, in view of the prohibition imposed by Article 243-M(1), aforesaid provisions of Part IX do not automatically apply to the scheduled areas, in view of exemption under Article 243-M(1). However, Article 243-M(4)(b) makes the provisions that Parliament may, by law, extend the provisions of the Act, subject to such exceptions and modifications, as may be specified in such law, in so far as scheduled areas and trial areas are concerned. It has been noticed that for determination of the issue “whether Part IX of the Constitution should be extended to the scheduled areas and if so, with what exception and modification”, a Committee, commonly known as ‘Bhuria Committee’, was constituted and on its recommendation, in exercise of power, conferred by Article 243- M(4)(b), the Parliament enacted The Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (Act No. 40 of 1996), extending Part IX of the Constitution, with such exceptions and modifications, as are provided in Section 4 of the said Act.
42. In view of the aforesaid Act, extending Part IX of the Constitution of India to the scheduled areas, with exceptions and modifications, it can not be held that Jharkhand Panchayat Raj Act. 2001, as amended from time to time, is not applicable to the scheduled areas. Therefore, no relief can be granted to the petitioners of WP (PIL) No. 2993 of 2002 and WP (PIL) No. 5740 of 2003, as sought for in these cases.
Right to vote and right to contest election:
43. So far as the right to vote in election is concerned, the matter fell for consideration before the Supreme Court in the case of N.P. Ponuswami v. Returning Officer, . In the said case, the Supreme Court held that the right to vote or to stand as a candidate for election is not a civil right, but a creature of statute or special law, subject to limitations, imposed by it.
44. In the case of Jamuna Prasad Mukheriya v. Lachhi Ram, , the Supreme Court held that the right to context an election is not a common law right but is a special right, created by statue, which can be exercised on the conditions, laid down by the statute.
45. In the case of Jyoti Basu v. Debi Ghosal, , the Supreme Court held that a right to elect, fundamental though it is to the democracy but is not fundamental right nor a common law right, is statutory right.
46. The aforesaid issue fell for consideration before the Full Bench of Patna High Court in the case of Janardan Paswan v. State of Bihar, report in . The Court having noticed the constitutional scheme, as was existing, held that the larger constitutional scheme is indicative of prohibition against all discrimination, for or against common citizen in the field of Panchayat and electoral rights. The solitary exception thereto is special provision in Part XVI for a limited period, in a limited field and for a very limited class, by warrant of constitutional mandate only, The following observation was made by the Full Bench of Patna High Court : ,
“26. From a conspectus of American precedents resting on the foundational premise of the equal protection clause of the 14th Amendment (which in turn is virtually mathematically equivalent to the later part of our own Article 14), it is now well settled that :
(i) an elecror or a citizen has locus standi to challenge either the denial or debasement of his right of franchise;
(ii) such denial or debasement presents a justiciable cause of action which is within the judicial protection under the 14th Amendment;
(iii) the right of franchise lies at the heart of the representative government and in a free democratic country, and it is too important and preciou to be stripped of judicial protection;
(iv) one person one vote is the fundamental premise of the democratic system and is an inflexible single constitutional rule which cannot be allowed to be abridged;
(v) any debasement or dilution of the, equality of the right to vote is not to be. countenanced either directly or by any sophisticated methodology;
(vi) the equal population principle in electoral districts is basic to the equality of franchise because it is the citizens who cast their vote and not history, geography, economic, interests, or landscape; and
(vii) the principle aforesaid are applicable to the elections of the Federal and the State Legislatures and down the line to the level of Municipal election and the election of officials like Country Commissioners and School Board Trustees
XX.XX.XX.XX
30. In the light of the above, it would be somewhat manifest that the equality clause or Article 14 is equally attracted to the right of franchise and in electoral laws and elections generally…”. 47. The aforesaid decision of the Supreme Court as also the Full Bench’s decision of Patna High Court were rendered prior to the Constitution (Seventy-third Amendment) Act, 1992 when for the first time. Panchayat system was introduced at the grass roots level. Prior to such amendment the Panchayat system had been based purely on State Legislations, made in pursuance of Article 40 of the Constitution of India, one of the directive principles. In the year, 1993, the amendment was made to strengthen the Panchayat system by giving it a base and Part IX was added to the Constitution, consisting of Article 243 to 243-O. Anew schedule i.e., Eleventh Schedule was added Panchayats are proposed to be established at three levels i.e., Village, Intermediate and District Direct election by electorate from territorial constituencies was introduced in the respective Panchayat areas, for detailed provisions, Stats were empowered, subject to the constitutional provision, contained in Part IX, to make law. This Amendment is regarded as historic, which was made to establish strong, effective and democratic local administration for rural developments.
48. Article 243-D requires all seats in the Panchayats to be filled up by persons, chosen by direct election. Reservation of seats for Scheduled Castes, Scheduled Tribes and Women is required to be provided for, by virtue of Article 243-D of the Constitution, which reads as follows :
“243-D. Reservation of seats.-(1) Seats shall be reserved for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes,
in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, he same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constitutencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filed by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in , a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State, by law, provide :
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State :
Provided further that not less than on third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women :
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this part shall prevent that Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.”
49. After introduction of Article 243-D, as in every Panchayat, number of seats are to be reserved for Scheduled Castes and Scheduled Tribes, proportionate to “their population in that Panchayat area and the seats are to be filled up by direct election, now it can be safely stated that the right to contest an election in Panchayat is a special right, created under the Constitution, which can not be taken away by any subordinate legislation.
Constitution validity of reservation in Panchayat Election :
50. This issue fell for consideration before a division Bench of Patna High Court in the case of Krishna Kumar Mishra v. State of Bihar, reported in 1996(1) PLJR 581. The Court held that the principle of reservation is a special transitional provision, mainly meant for weaker section. The preamble of Constitution while guarantees justice, political and social, the principle of distributive justice can not be ignored. But while making the provisions of reservation in the Panchayat election, basic structure of Constitution can not be destroyed. The principle of equality, ‘including equality in the matter of adult franchise should remain intact. For making two classes amongst the contestants, by introducing reservation, there should be an intelligible differential, having nexus with the object, sought to be achieved. The harmoney between the fundamental rights and directive principles are to be maintained. One of the tests will be “whether the citizens have any right to vote and/or right to seek election and whether such right stands curtailed by reserving seats”. The Court held that for doing political justice, it is open to the Legislature to give rights and privilege in favour of one or other class of weaker section, so that they may determine and control their public policy, by sharing power with rest of the citizens.
51. In Sadhu Ram’s case, , the Supreme Court held :-
“There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society. Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party.”
52. Social justice in favour of weaker section while held to be valid, it was held that the convenience of the situation and need for adjusting the rights of a large number of people, without deprivation of any accrued right of anybody would be the justice, according to law.
53. In Lingappa Pochanna’s case , the Supreme Court held that principle of distributive justice can be made applicable in favour of weaker sections, such as, Scheduled Castes, Scheduled Tribes and Backward classes. The Constitution permits and directs the State to administer distributive justice.
54. The Legislatures having full power to come up with special provision for upliftment of weaker sections, in case of two unequals, to provide justice, political and social, the policy of distributive justice can be resorted to and reservation can be made even for the purpose of Panchayat election to provide political powers to a class of weaker section, not adequately holding such political power, was the observation of Patna High court in the case of Krishna Kumar Mishra v. State of Bihar, reported in 1996(1) PLJR 581. In the said case, Patna High Court, upheld Article 243-D of the Constitution of India and held it intra vires.
55. So far reservation of the offices and seats of Chairpersons, such as, Mukhiy-Up-Mukhiya, Pramukh-Up-Pramukh and Adhyaksh-Upadhyakash, are concerned, such matter fell for consideration before a Full Bench of Patna High Court in the case of Janardan Paswan v. State of Bihar, reported in AIR 1988 Pat 75. Treating the office and seat of Chairperson as solitary seat, Full Bench of Patna High Court held as follows :
“83. Now, once it is held as above that the Gram Panchayat is a wholly independent, autonomous and a selfcontained unit and therein the post of the Mukhiya is the solitary and only one as the head of its Executive Committee, then the submission of the learned counsel for the petitioners that the impugned provisions amount to an untenable 100% reservation seems to be patently unanswerable. By the amended provisions of the Ordinance in the respective villages where the office of the Mukhiya would, by the Collector, be reserved for scheduled castes and scheduled tribes only, then it would amount to the reservation of the single post of Mukhiya in that particular Gram Panchayat thus involving a 100% reservation in favour of the scheduled castes and scheduled tribes which would be frontally hit by Article 14 and apparently cannot be saved by clause (4) of Article 15 assuming that the same is applicable. It is settled law that barring exceptions a reservation even under Article 15(4) has to be reasonable and normally is not to exceed 50%. In any case, in exceptional and peculiar circumstances it may extend a little beyond that, but there is no manner of doubt that in the eye of law, even under the cloak of Article 15(4) a 100% reservation is not countenanced and is violative of the fundamental right of equality under Article 14. This legal position seems so undisputed that it is unnecessary and, indeed, wasteful to cite precedent therefore or to multiply authorities in this contest.”
56. After the Constitution (Seventy-third Amendment) Act, 1992, by which Part IX comprised of Articles 243 to 243-O was inserted, similar issue again fell for consideration before a Division Bench of Patna High Court in the case of Krishna Kumar Mishra v. State of Bihar, reported in 1996 (1) PLJR 581. Having noticed different decisions of Supreme Court, including the decisions in the case of “Balaji”, , “Devdasan’s case”, and the decision, rendered in the case of “Indra Sawhney”, , the Division Bench of Patna High Court while upheld Article 243-D, including clause 6 to the said Article, held that reservation of solitary seat amounts to centpercent reservation and is impermissible, such reservation having been held excessive and unreasonable. The Court further held that the permissible limit being 50%, no reservation, excess to such limit, is permissible even in Panchayat election.
Whether the offices and seats of Chairpersons are solitary seats or a group of seats ?
57. The decision rendered by Full Bench of Patna High Court in the case of Janardan Paswan v. State of Bihar, was based on Bihar Panchayat Raj Act, 1947, as was amended vide Amending Ordinance No. 3 of 1987. Therein the offices and seats of Chairpersons, such as, Mukhiya, were shown to be self-contained unit of a Panchayat. This issue was neither raised nor discussed by the Division Bench of Patna High Court in the case of Krisna Kumar Mishra v. State of Bihar, reported in 1996(1) PLJR 581. After insertion of Part IX, constitution of Panchayats was laid down under Article 243-B, which reads as follows :
“243B. Constitution of Panchayats.-
(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.”
Article 243-C while deals with composition of Panchayats, clause (3) therein reads as follows :
“243-C. Composition of Panchayats.-
xxx xxx (3) The Legislature of a State may by law, provide for the representation (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members .of the House of the People and the member of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat; (d) of the members of the council of States and the members of the Legislative Council of the State, where they are registered as electors within- (i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; (ii) a Panchayat area at the district level, in Panchayat at the district level." Clause (4) of Article 243-D stipulates reservation in the offices of Chairpersons for the Scheduled' Castes and Scheduled Tribes, relevant portion of which is quoted hereunder : "243-D. Reservation of seats.-xxx xxx (4) The office of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide :
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Casts in the State or of the Scheduled Tribes in the State bears to the total population of the State :
Provided further that not less than one-third of the total number of offices of Chairpersons in the panchayats at each level shall be reserved for women ;
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.”
58. From the aforesaid provision, it will be evident that after insertion of Part IX, the offices and seats of Chairpersons were not treated to be solitary but were clubbed together for the purpose of reservation. This will be evident from the fact that the Panchayats are of three tier level; Village, Intermediate & District. For the purpose of reservation of seats of Panchayats in favour of Scheduled Castes and Scheduled Tribes while population of Scheduled Castes or Scheduled Tribes of that Panchayat to be broken, for the purpose of reservation of the offices and seats of Chairpersons in the Panchayats, at all levels, in favour of Scheduled Castes and Scheduled Tribes, proportionate reservation as per the population of the Scheduled Castes and Scheduled Tribes in the State is to be taken into consideration. That means, for the purpose of reservation of seats of Chairpersons, State was the unit presumed, which includes a group of seats, as distinct from solitary seat. In the circumstances, on plain reading of Part IX of the Constitution of India, it can be held that the offices and seats of Chairpersons are not solitary seat rather group of seats, clubbed together for the purpose of reservation, wherein, reservation is to be made on rotation basis.
Provisions of law tinder challenge :
59. In WP (PIL) No. 1633 of 2002 petitioner Janardan Manki has challenged the validity of Section
21(A)(1)(i), Section 22(D), Section 40(A)(1) and Section 55(A)(1) of the Jharkhand Panchayat Raj Act, 2001, whereby and whereunder, all the offices and seats of Chairperson at all levels in non-scheduled areas have been unreserved, treating the office and seat of Chairperson as solitary seat. Relevant provisions with approximate English translation are quoted and mentioned hereunder ;
“Section 21(A). Reservation of seats for Mukhiya & Up-Mukhiya (in General Area).-(1) The seats of Mukhiya and Up-Mukhiya being solitary seat shall be kept unreserved or steps shall be taken in accordance with provisions made by the State Government.
Section 22(D). Election of Up-Mukhiya.-The seats of Up-Mukhiya being solitary seat shall be kept unreserved or steps shall be taken in accordance with the provisions, made by the State Governme.it.
Section 40(A). Reservation of seats of Pramukh and Up-pramukh (in General Areas).-(i) The seats of Pramukh and Up-Pramukh being solitary seat shall be kept unreserved or steps shall be taken in accordance with the provisions, made by the State Government.
(ii) The State Government shall be competent to make provision for reservation in accordance with law.
xxx xxx xxx
Section 55(A). Reservation of the seats of Adhyaksha and Upadhyaksha of Zila Parishad (in General Area).-(i) The seats of Adhyaksh and Upadhyaksh being solitary seat shall be kept unreserved or such provisions shall be made, as may be determined by the State Government.”
60. On the other hand, the offices and seats of Chairpersons have not been treated to be solitary seats but taken together for the purpose of reservation in favour of Scheduled Tribes in respect to scheduled areas. For the said reason, counsel appearing on behalf of petitioner Jharkhand Jamaitul Momineen of CWJC No. 2148 of 2001, petitioners Shiv Kumar Sharma and Ors. of WP (PIL) No. 1585 of 2002 and petitioner Dharmenda Mahto of WP (C) No. 2097 of 2003, at the time of arguments, confined their challenge to Section 17(B), Section 21(B), Section 36(B), Section 40(B) and 55(B) of the Jharkhand Panchayat Raj Act, 2001. Relevant provision of Section 21(B), Section 40(B) and Section 55(B) with approximate English translation are quoted and mentioned hereunder :
“21 (B) Reservation of seats for Mukhiya & UP-mukhiya in Gram Panchayat (in scheduled areas).-The seats of Mukhiya and Up-Mukhiya of Gram Panchayat in scheduled areas shall be reserved for Scheduled Tribes :
Provided that in such Scheduled area in Gram Panchayat where there is no population of Scheduled Tribes, seats of Mukhiya and Up-Mukhiya, reserved for allotment in favour of Scheduled Tribes, shall be excluded in prescribed manner.
40(B} Reservation of seats of Pramukh and Up-pramukh (in the Scheduled Area).-In scheduled area, the seats of Pramukh and Up-Pramukh in Panchayat Samiti shall be reserved for the members of Scheduled Tribe.
55(B) Reservation of seats of Adhyaksha and Upadhyaksha of the Zila Parishad (in scheduled area).-In scheduled area, the seat of Adhyaksh and Upadhyaksh of Zila Parishad shall be reserved for the members of Scheduled Tribes”
61. So far as petitioner Dhananjay Mahto of CWJC No. 3591 of 1997 (R) and petitioners Ganga Prasad Singh and Ors. of WP (PIL) No. 3877 of 2002 are concerned, they have challenged the 2nd proviso to clause (g) of Section 4 of PESA Act, 1996, whereby and whereunder, all seats of Chairpersons of Panchayat at all levels in the scheduled areas have been reserved for Scheduled Tribes, as quoted hereunder :
“4. Exceptions and modifications to Part IX of the Constitution.-
xxx xxx xxx xxx (g) the reservation of seats in the Scheduled Areas at every Panchayat ' shall, be in proportion to the population of the communities in the Panchayat for whom reservation is sought to be given under part IX of the Constitution : Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats : Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes."
62. From the relevant provisions of Jharkhand Panchayat Raj Act, 2001, English translation of which has been mentioned above, it appears that the State of Jharkhand itself was confused as to whether the seats and offices of Chairpersons are solitary seats or a group of seats. In respect to non-scheduled areas while the seats of Chairpersons have been treated to be solitary, in respect to scheduled areas the seats of Chairpersons have been treated as a group of seats.
63. It has already been held that under Part IX of the Constitution the seats and offices of Chairpersons of Panchayats at all levels have not been treated as solitary seats, but they have been treated to be a group of seats of Chairpersons. Such constitutional provision having been made, it was not open for the State to treat the offices and seats of Chairpersons of Panchayats at all levels in non- scheduled areas a solitary seats. There being a constitutional mandate, certain number of seats and offices of Chairpersons in the Panchayats at all levels are to be reserved in favour of the Scheduled Castes and Scheduled Tribes, proportionate to their population in the State, which are required to be reserved by rotation to different Panchayats at each level. Article 243-D being applicable for non-scheduled areas, it was not open to the State to unreserve all the offices and seats of Chairpersons of Panchayats at all levels in the non-scheduled areas. Therefore, keeping the seats of Chairpersons of Panchayats at all level in non-scheduled areas unreserved, being in violation of Article 243-D of the Constitution of India, Section 21(A)(1)(i), Section 22(D), Section 40(A)(1) and Section 55(A)(1) of Jharkhand Panchayat Raj Act, 2001, can not be upheld and are, accordingly, declared unconstitutional.
64. So far as 2nd proviso to clause (g) of Section 4 of PESA Act, 1996 is concerned, by such provision of the seats of Chairpersons of Panchayats at all levels in the scheduled areas have been reserved for the Scheduled Tribes. In view of the aforesaid proviso to clause (g) of Section 4 of PESA Act, 1996, the State Government while enacted Jharkhand Panchayat Raj Act, 2001 in regard to the scheduled areas, all seats of Chairpersons of Panchayats at all levels have been reserved for Scheduled Tribes vide Section 21(B), Section 40(B) and Section 55(B) of the Act, 2001. It has already been held that cent-percent reservation of the offices and seats of Chairpersons can not be made, being excessive, unreasonable and against the principles of equality i.e., violative of Article 14 of the Constitution of India. By the aforesaid provisions cent-percent reservation of seats of Chairpersons of Panchayats at all levels in scheduled areas having been made, they can not be upheld, being unconstitutional. Accordingly, the 2nd proviso to clause (g) of Section 4 of PESA Act, 1996, Section 21(B), Section 40(B) and Section 55(B) of Jharkhand Panchayat Raj Act, 2001 so far cent- percent reservation of seats of Chairpersons of Panchayats at all levels in favour of Scheduled Tribes is concerned, are hereby declared unconstitutional and ultra vires.
65. This apart, from Scheduled Districts Act, 1874 (Act XTV of 1878) it will be evident that even during the British period one or other district, such as, Santhal Pargana and Chhutia Nagpur of the then Bengal (now in Jharkhand) were declared scheduled districts. Individual blocks were not declared as scheduled areas but a district in whole. This situation also continued even after indepedence. When Scheduled Area (Part A States) Order, 1950 was issued, only Ranchi district, Singhbum District (excluding Godda and Deoghar Sub-divisions) and Latehar Sub-division within Palamau district were declared scheduled areas. By Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 again the scheduled areas were shown mainly district-wise, such as, Ranchi district Singhbhum district, Latehar Sub-division (now Latehar district), Bhandaria block of Garhwa Sub-division, Dumka (now a district), Rajmahal and Jamtara (now districts) Sub- divisions and Sundarpahari and Boijor blocks of Godda Sub- division of then Santhal Pargana district. For the first time, certain blocks were shown and included in the scheduled areas.
66. After re-organization of the States and creation of State of Jharkhand, when The Scheduled Areas (Stats of Chhatisgarh, Jharkhand and Madhya Pradesh) Order, 2003′ has been issued, blocks of different districts have been declared as scheduled areas. No individual district has been declared or shown as Scheduled (District) Area. It has not been made clear either by the counsel for the Union of India or the State of Jharkhand as to how the seats and offices of Chairpersons at district level, such as, Adhyaksh and Upadhyaksh in an area can be reserved for Scheduled Tribes, if the district, in particular, has not been declared as scheduled area. For example, one block of the district of Garhwa, two blocks of Godda, four blocks of Jamtara and six blocks each of Dumka and Pakur districts have been declared as scheduled areas. But those district in general have not been declared as Scheduled (District) Areas. If the 2nd proviso to clause (g) of Section 4 of PESA Act, 1996 is applied, the seat and office of Chairperson of Adhyaksh and Upadhyaksh of Zila Parishad of a district like Garhwa has to be reserved for Scheduled Tribes, if the district in whole is treated as scheduled area. On the other hand most of the blocks of such district like Garhwa being non-scheduled areas, if the provisions of Article 243-D(4) is applied, the seats of Chairpersons, such as, Adhyaksh and Upadhyaksh of Zila Parishad Garhwa can not be reserved only for Scheduled Tribes. Viewed with this angle, it can also be held that the 2nd proviso to clause (g) of Section 4 of the PESA Act, 1996 in regard to one or other district, which consists of both non-scheduled and scheduled area, can not be given effect to for the seats and offices of Adhyaksh and Upadhyaksh of Zila Parishad, as it will be indirect conflict with Article 243-D(4) of the Constitution of India.
67. Counsel for the petitioner Raja Ram Mahto of WP (PIL) No. 747 of 2001 and petitioner Rakesh Kumar of WP (PIL) No. 2728 of 2002 confined their argument in regard to reservation, made up to 80 percent of the seats at Gram Panchayats and also questioned the validity of Clause 6 of Article 243-D of the Constitution of India.
However, no ground has been shown as to why clause 6 to Article 243-D of the Constitution of India should be declared ultra vires. The provisions of clause 6 to Article 243-D having already been upheld by the reasoned order by a Division Bench of Patna High Court in the case of Krishna Kumar Mishra v. State of Bihar, reported in 1996(1) PLJR 581, there appears no bound to disagree with the same. Such oral prayer, as was made by the counsel appearing on behalf of the aforesaid petitioners, is accordingly, rejected.
68. So far as reservation, up to 80 percent of the seats of Gram Panchayats is concerned, such stipulation has been made under Sub-section (2) to Section 17(B); Sub-section (2) to Section 36(B) and Sub-section (2) to Section 51(B) of the Act, 2001, as quoted and mentioned in English version hereunder :
“17(B). Reservation of Seats in Gram Panchayat.-xxx xxx
(B) For the members of Gram Panchayat (in scheduled area).(I) In scheduled areas, in every Gram Panchayat, reservation of seats in favour of Scheduled Castes and Scheduled Tribes shall be proportionate to their respective population in that Gram Panchayat :
Provided that the sets reserved for Scheduled Tribes shall not be less than half of the total number.
(2) In the scheduled areas, in Gram Panchayat, seats shall be reserved in such number in favour of persons of other backward class, proportionate to their population, which, if combined with the seats reserved for Scheduled Castes, Scheduled Tribes, if any, shall not exceed more than Eighty percent of total seats of that Gram Panchayat.
(3) One-third seats out seats, reserved under sub- sections (1) and (2) shall be reserved for respective Women, belonging to Scheduled Castes, Scheduled tribes or other backward class.
(4) One-third seats out of total seats of concerned Gram Panchayat (which includes the seats reserved for Scheduled Castes, Scheduled Tribes, other backward class women) shall be reserved for women.
(5) Reservation of seats under aforesaid Sub-sections, in the prescribed rotational manner shall be made by the State Election Commission.
(6) In those Gram Panchayats of Scheduled areas, in which there is no population of Scheduled Tribes, the seats reserved for Scheduled Tribe members, shall be excluded from allotment in prescribed manner.
(7) Such territorial constituency (wards) of Gram Panchayat in which there is no population of Scheduled Castes, Scheduled Tribes or backward class, shall be excluded from allotment of reserved seats of respective Scheduled Cases, Scheduled Tribes and other backward class, in prescribed manner.
36(B). Reservation of seats of Panchayat Samtti (in General Area).-(1) In scheduled areas, in every Panchayat, Samiti, reservation of seats in favour of Scheduled Castes and Scheduled Tribes shall be made proportionate to their respective population in that Panchayat Samiti :
Provided that the seats reserved for Scheduled Tribes shall not be less than half of the total number.
(2) In scheduled areas, in Panchayat Samiti, seats shall be reserved in such number in favour of persons of backward class, proportionate to their population, which, if combined with the seats reserved for Scheduled Casts and Scheduled Tribes, if any, shall not exceed more than Eighty percent of total seats of that Panchayat Samiti.
(3) One-third seats out of the seats reserved under Sub-sections (1) and (2) shall be reserved for women, belonging to Scheduled Castes, Scheduled Tribes or other backward class.
(4) One-third seats out of total seats of concerned Panchayat Samiti (which includes the seats reserved for Scheduled Castes, Scheduled Tribes, other backward class women) shall be reserved for women.
(5) Reservation of seats under aforesaid Sub-sections, in the prescribed rotational manner, shall be made by State Election Commission.
(6) Such territorial constituency of Panchayat Samiti, in which there is no population of Scheduled Castes, Scheduled Tribes or other backward class, shall be excluded from allotment of reserved seats of respective Scheduled Castes, Scheduled Tribes and other backward class, in prescribed manner.
(7) xxx xxx xxx xxx (8) xxx xxx xxx xxx
51 (B). Reservation of seats of Zila Parishad (in scheduled area).-(1) In scheduled areas, in every Zila Parishad, reservation of seats of favour of Scheduled Castes and Scheduled Tribes shall be made, proportionate to their respective population in that Zila Parishad :
Provided that the seats reserved for Scheduled Tribes shall not be less than half of the total number.
(2) In scheduled areas, in Zila Parishad, the seats shall be reserved in such number in favour of persons of backward class, proportionate to their population, which, if combined with the seats reserved for Scheduled Castes and Scheduled Tribes, if any, shall not exceed more than Eighty percent of total seats of that Panchayat Samiti.
(3) One-third seats out of total seats reserved under Sub-sections (1) and (2) shall be reserved for women, belonging to Scheduled Castes, Scheduled Tribes or other backward class.
(4) One-third seats out of total seats of concerned Zila Parishad (which includes the seats reserved for Scheduled Castes, Scheduled Tribes, other backward class women) shall be reserved for women.
(5) Reservation of seats under aforesaid Sub-sections, in the prescribed rotational manner, shall be made by State Election Commission.
(6) Such territorial constituency of Zila Parishad, in which there is no population of Scheduled Castes, Scheduled Tribes or other backward class, shall be excluded from allotment of reserved seats of respective Scheduled Castes, Scheduled Tribes and other backward class, in prescribed manner.”
69. From the aforesaid provisions, it will be evident that in regard to the scheduled areas while reservation has been made in favour of Scheduled Castes and Scheduled Tribes it has been stipulated that the total reservation of seats of Panchayats should not exceed more than Eighty percent.
70. Under proviso to Sub-section (1) of Section 17(B) and Section 36(B), minimum 50% of the seats in the scheduled areas has been ordered to be reserved, Sub-section (1) stipulates reservation in favour of Scheduled Castes and Scheduled Tribes, proportionate to their population.
71. It has already been held that ex cessive reservation even in the matter of Panchayat election is unreasonable and against the principles of equality and violative of Article 14 of the Constitution of India. As reservation of seats of Panchayats at any level can not exceed 50 percent of the total number of seats, Sub-section (2) to Section 17(B); Sub-section (2) to Section 36(B) and Sub-section (2) to Section 51(B), allowing reservation up to 80 percent of total seats in favour of Scheduled Castes, Scheduled Tribes and Backward classes can not be upheld and they are, accordingly, declared unconstitutional and ultra vires.
Reservation of seats of Chairpersons at all level in favour of women :
72. At the time of argument, counsel for some of the petitioners also made grievance that the State Government has not made any provision for reservation of seats and offices of Chairpersons in favour of Women. It was submitted that Jharkhand Panchayat Raj Act, 2001 can not be given effect to in absence of such reservation of seats and offices of Chairpersons in favour of women.
73. Though no such specific pleading has been made in the writ petition, many of the writ petitions being in the nature of public interest, this Court is inclined to entertain the prayer.
74. Article 243-D(4) of the Constitution of India mandate reservation of -the seats and offices of the Chairpersons in Panchayats at all levels in favour of Scheduled Castes, Scheduled Tribes and Women 2nd Proviso to clause (4) of said Article 243-D makes it specific that such reservation of the’ seats and offices of Chairpersons in Panchayats at all levels in favour of women shall not be less than one third of the total seats and offices of Chairpersons. If no such provision has been made under Jharkhand Panchayat Raj Act, 2001, the State Election Commission, Jharkhand, is bound to make such reservation in favour of women, in terms with clause (4) of Article 243-D of the Constitution of India, at the time of election. The respondents, including the State Election Commission, Jharkhand, are, accordingly, directed to take appropriate steps for reservation of certain seats and offices of Chairpersons in Panchayats at all levels in favour of women, in terms with Article 243-D(4) of the Constitution of India and thereby allow the eligible women candidates to contest such seats of Chairpersons in Panchayats at all level.
Applicability of Jharkhand Panchayat Raj Act, 2001 in ‘Kolhan Area’ :
75. Learned counsel for the petitioner of WP(C) No. 5939 of 2001 while relied on clause (a) to Section 4 of PESA Act, 1996, submitted that Jharkhand Panchayat Raj Act, 2001, being contrary to the customary law of ‘Kolhan Area’, can not be made applicable. The relevant clause (a) to Section 4 of PESA Act, 1996 reads as follows :
“4. Exceptions and modifications to Part IX of the Constitution.
(a) A State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.”
76. It has to be noticed that an area, known as ‘Kolhan Area’ is existing in the district of Singhbhum West. The ‘Kolhan’ Villages are guided by ‘Mankies’ and ‘Mundas’. The ‘Munda’ is the head of the village, having power of revenue collection through Tahsildars, ‘Manki’ is the head of ‘Pir’ consisting of 10 to 15 villages. From the Singhbhum Gazetteer, 1958 it appears that the administration of ‘Kolhan’ and ‘Porahat Government Estates’, since long time passed, has been entrusted to a senior member of the State Civil Services, designatedas ‘Kolhan Superintendent’, who is under the general control and supervision of the Deputy Commissioner. Appointment to the post of ‘Kolhan Superintendent’ is made by the Government while the Gazetted officers to assist the ‘Kolhan Superintendent’ are selected by the Deputy Commissioner, out of general category of officers, posted at the headquarters.
77. ‘Kolhan Superintendents’ were given elaborate staff, consisting of an Inspector, an Accountant, two over-sheerts, one Kanungo, several Tahsildars and other sub-ordinate functionaries. The main collection of rent in ‘Kolhan area’ are done by the permanent time honoured agencies, namely, ‘Mundas’, ‘Mankies’ and Tahsildars’.
78. The administration of the ‘Kolhan area’ fully follows the trend of the Manki and Mundari system. ‘Munda’ is a village head while ‘Manki’ is the divisional head, having jurisdiction over a number of villages, varying from three to twenty five. The Tahsildar is an agent of Manki to assist collection. All they work at commission basis and keep certain percentage of the rent collected.
79. The main aspects of the ‘Kolhan Administration’ are :
(a) handling of civil cases of the areas under the Wilkingson’s rule;
(b) the system of land settlement and general superintendence over the village revenue through the hierarchy of Mundas and Mankies and
(c) the implementation of the provisions of Chhotanagpur Tenancy Act, with a view to prevent alienation of the lands of the abroiginals.
80. Learned Advocate General appearing on behalf of the State of Jharkhand submitted that the Jharkhand Panchayat Raj Act, 2001 does not offend any customary law or social or religious practices nor contravenes any traditional management practices of the community resources.
81. ‘Gram Sabha’ has been defined under Section 2(iii) of Jharkhand Panchayat Raj Act, 2001, which means a body, consisting of persons,, registered in the electoral rolls, relating to a village compromised within the area of Panchayat at the village level and established under Section 3 of the Act.
82. Chapter II of the said Act deals with ‘Gram Sabha’, including Gram Sabha in the scheduled areas. As per Section 3(ii), Gram Sabha means a body consisting of persons, registered in electoral rolls, relating to a village comprised within the area of the Panchayat at the village level. In a scheduled area only such person can preside over the meeting of Gram Sabha, who is neither the Mukhiya nor Up-Mukhiya but a person, known as ‘Pradhan’, ‘Manjhi’, ‘Munda’, ‘Pahan’, ‘Mahto’ or any other name, as may tally, acquainted with the prevailing traditions of the particular area that means Village Chief. In case of dispute relating to any person, present in the meeting of Gram Sabha, such Presiding Officer (Village Chief, such a, ‘Manjhi’, ‘Munda’ etc.) is empowered to decide in the law of the electoral roll of the Gram Sabha.
83. Under Section 10, Gram Sabha has been empowered :
(i) to identify the scheme for economical development of the village t and to lay down the number of their priority
(ii) to grant such scheme of social and economical developments in which all the proposed annual schemes of village level are included prior to implementation of programmes and projects
(iii) to make recommendation after discussion and annual budget of the Gram Sabha
(iv) to discuss an audit report and annual account
(v) to decide and attest the paper for allotment of projects and programmes, specified under Section 10
(vi) to identify and select beneficiaries under Property Alleviation and other Programme
(vii) to determine distribution and proper use of the assets for the beneficiaries.
(viii) to mobilize people for community welfare and to procure assistance of voluntary labour etc.
84. Under Section 10(2)(3) while Gram Sabha has been empowered to place the annual budget of the Gram Panchayat and annual plan for the coming financial year, it has also been empowered under Section 10(2) to supervise the construction and maintenance of village road, bridge, culverts, Bandhas and other installations of public use. under Section 10(5) additional powers and functions have been given to the Gram Sabhas of Scheduled areas which have been empowered to protect and preserve the traditions and customs, cultural identification and community, assistance (amenities) (Sarna, Masna, Johar place etc.) and the customary way of solving the disputes, which are not contrary to the Constitution and shall place the proposals regarding the help in a prescribed manner before the Gram Panchayat, Panchayat Samiti and Zila Parishad. Gram Sabha of scheduled areas have also been empowered to maintain natural resources, pertaining to the village, which includes soil, water and forest, as per existing tradition in tribal areas, but not contrary to the provisions of the Constitution. It has been empowered to monitor the resources and expenditure of the local schemes, including tribal schemes.
85. Therefore, it is evident that the tribal heads, such as, Manjhies, Mundas, Pahan etc. having been empowered to preside over Gram Sabha, by constituting Panchayats at all levels, no interference has been made with the customary law or social and religious practices or traditional management practices of community resources. On the other hand, the Gram Sabha headed by Manjhies, Mundas, Pahan etc have been clothed with more power under the Jharkhand Panchayat Raj Act, 2001, including the powers under the customary law etc. Thus, the prayer, as made by the petitioner of WP(C) No. 5939 of 2001 can not be accepted.
86. It has been brought to the notice of the Court that a Division Bench of this Court vide its judgment dated 18th September, 2003, passed in WP (PIL) No. 3270 of 2003, Rajendra Singh Munda v. State of Jharkhand and Ors. and analogous cases had directed the State Government to hold election within the stipulated period. The order of the Court not having been complied with, a Contempt Petition being ‘ Contempt (Civil) Case No. 741 of 2004 was preferred, wherein, this Court, taking into consideration the facts and circumstances, by order dated 8th August, 2005 allowed the State Government to complete the Panchayat Elections in the State of Jharkhand and to announce the results of such election by 31st October, 2005. Now the Court having declared certain provisions of Jharkhnad Panchayat Raj Act, 2001 and 2nd proviso of clause (g) of Section 4 of PESA Act, 1996 ultra vires, the State Government may feel difficulty in determining the question as to how many seats of Panchayats and the offices of Chairpersons at all level, including non- scheduled areas and scheduled areas, are to be reserved for Scheduled Castes, Scheduled Tribes, other backward class and the women. In such a situation, there will be two options before the State Government : it will either come out with appropriate amendment of law immediately or will follow the principles of reservation, as laid down under Article 243-D of the Constitution of India for both scheduled areas and non-scheduled areas, Part IX of the Constitution, including Article 243-D having been extended to the scheduled areas vide PESA Act, 1996 with such exceptions and modifications, as shown therein, except the 2nd proviso to clause (g) of Section 4, which has been declared ultra vires.
87. In the result, for the reasons mentioned above, there being no merit, the writ petitions being WP(C) No. 5939 of 2001, preferred by Devendra Nath Champia, WP(PIL) NO. 2993 of 2002, preferred by Adivasi Aatu Baisi Self Governance Committee, WP(PIL) No. 5740 of 2003, preferred by Basudeo Besra and anr., WP(PIL) No. 2133 of 2002, preferred by Subhash Chandra Pradhan and part of the prayer of the petitioners Ainar Kumar Mahto & Anr. in WP(PIL) No. 849 of 2002, are rejected and dismissed whereas the writ petitions, being CWJC No. 3591 of 1997(R), preferred by Dhananjan Mahto, WP(PIL) No. 3877 of 2002, preferred by Ganga Prasad Singh and Ors., WP(PIL) No. 1633 of 2002, preferred by Janardan Manki, WP(PIL) No. 747 of 2001, preferred by Raja Ram Mahto (in part), WP(PIL) No. 2728 of 2002, preferred by Rakesh Kumar (in part), WP(C) No. 2148 of 2001, preferred by petitioner Jharkhand Janiaitul Momineen, WP(PIL) No. 1585 of 2002, preferred by petitioners Shiv Kumar Sharma and another, WP(C) No. 2097 of 2003, preferred by Dharmendra Mahto, and WP(PIL) No. 849 of 2002, preferred by petitioners Amar Kumar Mahto & Anr., are hereby allowed. However, in the facts and circumstances, there shall be no order as to costs.
88. Let a copy of this order be handed over to the learned Advocate General and the counsel for the State Election Commission, Jharkhand, for necessary action.
Altamas Kabir, C.J.
89. I agree.