ARKA VASANTH RAO Vs. GOVT OF ANDHRA PRADESH

JUDGEMENT

(1.) Seeking a declaration byTa mandamus that the Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994) (hereinafter referred to as "the Act") is not applicable to the scheduled areas in the State of Andhra Pradesh, as declared by the President of India under the V Schedule to the Constitution of India, and a consequential direction restraining the State of Andhra Pradesh and the State Election Commissioner from holding elections to Mandal Praja Parishads, Mandal Praja Territorial Constituencies and Zilla Parishad Territorial, Constituencies (falling within the scheduled areas), this writ petition was filed by Arka Vasanth Rao, the Vice-President of the Gondwana Sangarsh Samithi and three other' tribals. The writ petition is founded on the plea that after the enactment of the Constitution (73 Amendment) Act, 1992 by Parliament in exercise of its constituent power, inserting Part-IX comprising Arts. 243 and 243-A to 243-O, the legislature of the State of Andhra Pradesh has no power to make a law with respect to Panchayats, extending its operation to scheduled areas in view of the specific constitutional injunction incorporated in Art. 243-M. Inter alia, it is averred in the affidavit filed in support of the writ petition that due to large influx of non-tribals into the scheduled areas, the population of the tribals therein has decreased to a considerable extent resulting in the demographic composition of the scheduled areas undergoing a radical change reducing the tribals to a minority in many parts of the scheduled areas. More than 48% of the agricultural land in the scheduled areas went into the hands of non-tribals in spite of the protected legislation forbidding non-tribals from owning lands in the tribal areas -- 5,913 villages spread over 8 districts -- Adilabad, Warangal, Khammam, West Godavari, East Godavari, Visakhapatnam, Vizianagarani', Srikakulam and Mahaboob-nagar -- in an area of 30,293 sq. kilometer's and populated by 33 scheduled tribes. The total population of the scheduled tribes according to 1991 census is 42 lakhs accounting for 6.3% of the total population in the State. The enactment of the Panchayat Raj Act by the State of Andhra Pradesh has resulted in the position, regarding reservation for scheduled tribes in scheduled areas undergoing a substantial change to the detriment of tribal interests compared to the earlier position; the exclusive reservation in favour of the scheduled tribes under the V Schedule to the Constitution has now been limited only to those cases where the entire territorial constituency lies in the scheduled area and also the population of the scheduled tribes in the constituency is more than 50%. This has resulted in many elective positions in the scheduled areas going in favour of non-tribals. Out of the 46 Mandal Praja Parishads in the scheduled areas, only 33 are reserved in favour of the scheduled tribes and the remaining 13 were brought into the open pool as the percentage of the tribal population in them is less than 50%. The object of enacting the V Schedule to the Constitution is to preserve and protect the interests of the scheduled tribes in the defined areas, particularly in regard to land and ensure that no erosion takes place in the tribal domain and in order to achieve this objective, special regulations have been enacted under the V Schedule by the Governor, prohibiting the transfer of all land from tribals to non-tribals, regulation of money-lending etc. This objective has been watered down by the enactment of the Panchayat Raj Act, which has introduced the population norm for the purpose of reservation and this would only lead to the disappearance of the scheduled area itself over a period of time by influx of non-tribals.

(2.) The State Government represented by the Chief Secretary is the first respondent and the Union of India represented by the Secretary, Rural Development is the second respondent. The State Election Commissioner is -the third respondent in the writ petition. In the counter-affidavit filed by Sri Kothanda-pani, Deputy Secretary to Government, Panchayat Raj and Rural Development Department, it is averred, inter alia, that the State Legislature has power under Entry 5 of List-II of the Seventh Schedule to the Constitution to enact a law with regard to Panchayat Raj administration. The Act contemplates a three tier Panchayat Raj structure -- village, intermediate (Mandal) and district level. The Constitution (73rd Amendment) Act, 1992 was enacted for the purpose of ushering in an uniform structure of Panchayat Raj bodies and making it mandatory for the State to follow the same. Although sub-clause (b) of clause (4) of Art. 243-M enables Parliament to make a law extending the provisions of Part-IX, inserted by the Constitution (73rd Amendment) Act, to the scheduled areas, the power of the Governor under Part-X read with paragraph 5 of Schedule V to the Constitution to make applicable or inapplicable, by public notification, any enactment made by the State Legislature or Union Parliament to scheduled areas remains unaffected. Accordingly, in exercise of the aforesaid power, a notification was issued in G.O.Ms. No. 123, Panchayat Raj (Rural Development and Relief) Department dated 8-3-1995 making the Act applicable to the scheduled areas. The legislative competence under Entry 5 of List-II is not shut-out by Art. 243-M.

(3.) No counter was filed on behalf of the Union of India, the second respondent, presumably due to the fact that a pure question of law is at issue and no questions of fact are involved. Sri Ravi Chander, the learned Additional Standing Counsel for the Central Government, has submitted that he has been instructed by the Union Law Secretary to adopt the stand of the State Government and that the Union has no different views other than what are expressed on behalf of the State Government.