PATEL VAKTABHAI PUNJABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) .In this group of petitions the petitioners have challenged the constitutional validity of the provisions of the Panchayats (Extension to the Scheduled Areas) Act,1996 (hereinafter referred to as the said Act for short), enacted by the Parliament on 24.12.1996 under Article 243-M(4)(b) of the Constitution of India which empowers the Parliament to extend the provisions of part IX of the Constitution to the Scheduled Areas and the tribal areas subject to such exceptions and modifications as may be specified in such law. The challenge is on the ground that the provisions of the said Act violate the fundamental rights guaranteed by Article 14 of the Constitution of India, and are ultravires Article 243-D of the Constitution. A declaration is also sought that the provisions of the Gujarat Panchayats (Amendment) Act,1998, enacted by the State Legislature for amending the provisions of the Gujarat Panchayats Act,1993 as a corollary to the said Act, so that the provisions of the Gujarat Panchayats Act,1993 applied to the Scheduled Areas of the State subject to modification and the amendment indicated in Schedules 4 and 5 of the said Amendment Act, are ultravires to Articles 14 and 243-D of the Constitution. A further declaration is sought that the Presidential Order declaring the concerned areas as Scheduled Areas is illegal, arbitrary and discriminatory. Finally, the notification issued by the Collector regarding elections to the reserved seats is also challenged. The reliefs sought in Special Civil Application Nos.8011/98, 8012/98 and 7239/98 are almost identical. In Special Civil Application No. 7239/98, there is one additional prayer challenging the statutory provisions and notification reserving the office of Sarpanch for the Scheduled Tribes.

(2.) The contentions that have been raised before us centre around the following constitutional and statutory provisions : A.Constitutional Provisions :

(3.) . The learned Senior Counsel for the petitioners, in context of the aforesaid provisions, submitted that by the enactment of the said Act by which the provisions of part IX of the Constitution were extended to the Scheduled Areas the Parliament has impinged upon the legislative sphere exclusively conferred on the State Legislature by virtue of entry no.5 of the State List in Schedule VII of the Constitution of India read with Article 246 thereof. He submitted that under the said entry, State Legislature alone was empowered to make laws with respect to Local Government, that is to say, constitution and powers of municipal corporations etc. and other local authorities for the purpose of local self - government or village administration. He submitted that in this view of the matter, the Parliament cannot make any such law under the guise of extending the provisions of part IX, as may be modified by it, to the Scheduled Areas which fell within the territory of a State. It was contended that the impugned provisions of the said Act were not just modifications or exceptions in Part IX but were totally different and unwarranted by Article 243-M(4)(b). It was also submitted that any such enactment of the Parliament would not be an amendment to the Constitution, as mentioned in sub-clause (4)(b) of Article 243-M of the Constitution, and must therefore be tested like any other ordinary law. It was therefore argued that the entire exercise of enacting the said Act was abortive due to want of legislative competence on the part of the Parliament. It was submitted that the Court was not debarred from considering this aspect of want of legislative competence by the provisions of Article 243-O which imposes a bar to interference by Courts in electoral matters.