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Gauhati High Court dismisses PIL seeking direction Arunachal Prasesh election commission to declare some villages under Panchayat Raj Act

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The Gauhati High Court on May 10 dismissed a Public Interest Litigation (PIL) filed seeking direction to the state election commission of Arunachal Pradesh to notify/ declare the 46 Chakma and Hajong villages in Changlang, Namsai and Papum Pare Districts as Gram Panchayats/ Anchal Samiti/ Zila Parishad Constituencies under the provisions of Arunachal Pradesh Panchayat Raj Act, 1997 .

The PIL has been filed by the 9 (nine) petitioners claiming that although the petitioners are voters for Parliamentary and Assembly Constituencies, the State respondents are adopting discriminatory attitude against the petitioners and other members of their community and thereby the petitioners have been illegally deprived of their right to participate in Panchayat Elections in the State in respect of their respective villages therefore through the PIL the Petitioners seeks direction to include the members of the Chakma and Hajong community in the electoral rolls for the purpose of such elections.

The Itanagar Bench of Justice Kalyan Rai Surana and Justice Robin Phukan observed that while filing the PIL, no leave,as envisaged under the provisions of Rule 8 of Order I of the CPC, was obtained by the petitioners from the Court to sue in a representative capacity. Similarly, none of the parties are arrayed as respondents in a representative capacity to represent the indigenous native people of the State of Arunachal Pradesh, who are ordinary inhabitants of the respective districts where the petitioners are seeking rights under the 2007 Act and Rules framed thereunder.

The Court finds force in the submissions made by the Additional Advocate General and the counsel for All Arunachal Pradesh Students Union (AAPSU) that the people of the State, who have been vehemently opposing the grant of right of residence, right to hold land and right to reside within the State of Arunachal Pradesh had not been arrayed as party respondents in the representative capacity. It is too well settled that only when a case is permitted to proceed in a representative capacity, the persons in whose benefit the litigation has been filed or defended would be bound by the judgment, order or decree. In matters where the rights of the indigenous native people are at stake, in the event any direction is issued by the Court to the State Election Commission to declare the 46 Chakma andHajong village areas in the three districts of Changlang, Namsai, and Papum Pare District as Gram Panchayat/Anchal Samiti/Zila Parishad Constituencies, it would materially affect such people.

Therefore, in the opinion of the Court, such a direction ought not to be issued in the absence of native/ indigenous people of these areas having been arrayed as a party respondent in this litigation, at least in representative capacity. In this regard, it is seen that the Supreme Court of India in the case of Khudiram Chakma (supra) had observed that the Chakma refugees had no right under Articles 19(1)(d) and (e), being unavailable to foreigners, and it was further held that the land held by the Chakma refugees by donation of land by the Raja was clearly invalid, which was held in light of (i) Section 3 of the Foreigner’s Act, 1946, (ii) Clause-9 of the Foreigner’s Order, 1948, and (iii) by respecting the provisions of Section 6-A of the Citizenship Act, 1955.

It was also observed by the Court that the tribes of North-Eastern States are historically protected races and that Part X of the Constitution of India contains provisions and laws governing them. In light of such observation, in cases of this nature where the relief sought for would materially affect the protection given to the indigenous natives of the State of Arunachal Pradesh, the people of the State are required to be heard,at least in representative capacity.

The Court is of the considered opinion that in cases of the present nature, where there is likelihood of protections granted to the indigenous native tribal people of the State being diluted and in the absence of any leave to proceed with this litigation in representative capacity, the Court is not inclined to grant any relief to the petitioners in this PIL.

However, it is clarified by the Court that the order would not preclude the petitioners or any other member of Chakma and Hajong refugees to approach this Court again with an appropriate application by applying for leave to sue in representative capacity, by impleading such appropriate persons as party respondents by suing them in representative capacity. The Court is inclined to accept the submissions made by the learned Additional Advocate General and the learned counsel for the respondent no. 6 that Deputy Commissioners of the three districts cannot be stated to be representatives of the people of the three districts where the refugees of Chakma and Hajong communities have been settled.

Moreover, on the issue relating to citizenship as provided for in Section 3(1)(a) and (b) of the Citizenship Act, 1955 is now sub judice before the Constitution Bench of the Supreme Court of India, which would have some implication on the status of the persons from Chakma and Hajong communities, the High Court would be a loath to hold that the petitioners and other Chakmaand Hajongcommunity persons are entitled to be enrolled as voters for the purpose of 1997 Act and 2002 Rules framed thereunder notwithstanding that a section of the said community have been conferred with voting rights in Parliamentary and Legislative constituencies. Each voter would have to be enrolled in the electoral rolls as per his/her own entitlement.

“It appears that in so far as the issue of establishing a “Municipal Corporation” is concerned, the Supreme Court of India, in clear terms, has held that the function of the Government in establishing a Corporation is neither executive nor administrative but there is a legislative process. There cannot be a different view when it comes to establishing ‘village’ for the purpose of 1997 Act and 2002 Rules. Therefore, no directions can be issued on the Government in discharge of its legislative duties. From the said judgment it is also seen that the procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed.”

Moreover, from a perusal of Section 9(1) of the 1997 Act, the Court noted that the State Government, having regard to the factors mentioned in Article 243-B of the Constitution of India is empowered by notification in the official Gazette to specify the local area of having regard to population of not less than 300 to be a Panchayati Raj areas.

The Court found force in the submissions made by the learned Additional Advocate General as well as the learned counsel for AAPSU that as per section 2 (xvii) of the 1997 Act, it would be the prerogative of the Govt. to declare an area recognized to be a village. Therefore, whether the Govt. would notify an area to be a village within the meaning of the 1997 Act would be the policy decision of the State. In this regard, the Court takes note of the observations of the Supreme Court of India in the case of Khudiram Chakma (supra) that the Court cannot enter into the wisdom of a policy of the State. Therefore, bound by the precedent on the point, the Bench would refrain from venturing into the prerogative of the State to take a policy decision as to whether they would notify any particular area to be a village within the meaning of section 2 (17) of the 1997 Act.

“The Court is aware of the limitations for exercising the power of judicial review under Article 226 of the Constitution of India. The Court cannot sit in judgment over the decision of the State Government as to whether the State Government has rightly or wrongly not declared 46 villages where the Chakma and Hajong community people are residing, being a policy decision. However, while exercising our jurisdiction under Article 226 of the Constitution of India, the Court finds that there are no materials available on record to show that the competent authorities of the State have taken into consideration the factors relevant factors in terms of the mandate of Article 243-B of the Constitution of India in respect of the said specific areas.

Therefore, the Court cannot hold that the decision making process of the State Government is vitiated by not taking into consideration the relevant factors and taking into consideration the irrelevant factors or that the inaction on part of the Government is vitiated by legal malice or malice in law, “said the Bench.

Therefore while dismissing the PIL , the Court held that direction seeking by the Petitioners is beyond its jurisdiction. In this regard, the Court is constrained to hold that if such a mandamus is issued, the Court would be clearly encroaching upon the jurisdiction of the State Government to exercise the powers under Section 9 of the 1997 Act. Therefore, the Court deemed it appropriate to leave it open for the State Government to decide as to what future course of action it proposes to take having regard to the mandate of Article 243-B of the Constitution of India and Section 9 of the 1997 Act.

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