STATE OF MADHYA PRADESH Vs. ASHOK KUMAR TRIPATHI

JUDGEMENT

(1.) REGARD being had to the similarity pertaining to the question of law involved in both these appeals, they were heard analogously and are disposed of by this common order. Be it noted that the pregnability of the order dated 19-5-2005 passed by the learned single Judge in W. P. 853 of 2005 has been challenged by the state of M. P. and its functionaries in Writ appeal No. 1364 of 2006 and the defensibility of the said order is assailed by the appellant in W. A. No. 658 of 2006 who had filed an application for intervention in the writ petition.

(2.) THE facts which are required to be exposited are that district Shahdol was constituted of many atahsil. On 15-8-2003, it was re-organized and two separate districts, namely Shahdol and Anuppur were constituted. District Anuppur by virtue of re-organization comprises of four Tahsils, namely anuppur, Pushparajgarh, Jaithari and kotma. These four Tahsils were declared as scheduled Areas under the provisions of scheduled Area (State of Bihar, Gujarat, madhya Pradesh and Orissa) Order, 1977. These four Tahsils were Scheduled Areas and all the seats of Gram Panchayats and janapad Panchayats were reserved for scheduled Tribes alone. Total numbers of gram Panchayats in four tahsils are 276 and all have been reserved for Scheduled Tribes. Similarly, there are four Janapad panchayats in four Tahsils and they have also been reserved for Scheduled Tribes. The respondents in W. A. No. 1364 of 2006 invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India contending inter alia that the respondent No. 1 is a resident of village Kuhka, post Malga, Tahsil Kotma, District Anuppur and were Sarpanch of Gram Panchayat from 1994 to 2000 and the respondent No. 2 belongs to Scheduled Tribe and is a member of Zila Panchayat and has been elected in january 2005 from Ward No. 8 of pushparajgarh. It was contended by them that while all the Tahsils of Anuppur district 'are reserved for Scheduled Tribes, the office of President of Zila Panchayat should have been reserved for Scheduled Tribes as the district Anuppur is constituted of such tahsils which form whole of the area of the district as scheduled area. It was put forth that Section 129-E of the M. P. Panchayat raj and Gram Swaraj Adhiniyam, 1993 (for short 'the Adhiniyam') provides for reservation of such area and there was no justification on the part of the State of M. P. and its functionaries not to reserve the office of the President, Zila Panchayat for the Scheduled Tribes.

(3.) THE said stand and stance of the writ petitioners were combated by the respondents therein stating inter alia that the scheduled area for the office of the President, Zila Panchayat is meant for the district and unless the district Anuppur is notified to be a scheduled area by a Presidential notification, as envisaged under Article 244 of the Constitution of India, the State cannot issue a notification for such reservation. The learned single Judge adverted to Article 244 and the Fifth Schedule of the constitution, the notification issued on 31-12-1977, the notification published in extraordinary gazette on 20th February, 2003 by which the President of India had rescinded the Scheduled Area of order of 1977 in so far as it relates to the area presently comprising in the State of Chhattisgarh, jharkhand and Madhya Pradesh, Article 243-M, the Panchayat (Extension to the scheduled Areas) Act, 1996, a Central piece of legislation (for short-Act of 1996), and directed as under: