JUDGMENT

Madan B. Lokur, J.

1. The primary question for consideration in this writ petition under Article 32 of the Constitution is whether the provisions of the Orissa Municipal Act, 1950 are applicable to Sundargarh district in Odisha.

2. It is not in dispute that Sundargarh district is a declared ‘Scheduled Area’ in terms of Clause 6(1) of the Fifth Schedule to the Constitution. This Clause reads as follows:

“6. Scheduled Areas.—(1) In this Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.”

3. The administration and control of a Scheduled Area is provided for in Article 244 of the Constitution which reads as under:- “244. Administration of Scheduled Areas and Tribal Areas : (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram.

(2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram.”

4. What follows from this is that an area may be declared by the President as a Scheduled Area (as has happened in the case of Sundargarh) and the administration and control of that area is then governed by the Fifth Schedule to the Constitution.

5. Scheduled Areas are also referred to in Part IX-A of the Constitution. This Part came into effect from 1st June 1993 through the Constitution (Seventy-fourth Amendment) Act, 1992. This Part concerns itself with the establishment, constitution, powers and functions of municipalities as institutions of self government. For the present purposes, we are concerned with Article 243-ZC and Article 243-ZF in Part IX-A. These provisions read as follows:

“243ZC. Part not to apply to certain areas.—(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244.

(2) Nothing in this Part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.

(3) Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.”

“243ZF. Continuance of existing laws and Municipalities.—Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:

Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.”

6. A BREAK-DOWN OF THE PROVISIONS OF ARTICLE 243-ZC OF THE CONSTITUTION MAKES IT CLEAR THAT:

(A) PART IX-A DOES NOT IPSO FACTO APPLY TO SCHEDULED AREAS [ARTICLE 243-ZC(1)];

(B) PARLIAMENT MAY, BY LAW, EXTEND THE PROVISIONS OF PART IX-A TO A SCHEDULED AREA SUBJECT TO EXCEPTIONS AND MODIFICATIONS [ARTICLE 243-ZC(3)]. FACTUALLY, PART IX-A HAS NOT BEEN EXTENDED TO THE SCHEDULED AREA OF SUNDARGARH. IN OTHER WORDS, PART IX-A OF THE CONSTITUTION (WITH OR WITHOUT EXCEPTIONS AND MODIFICATIONS) DOES NOT APPLY TO THE SCHEDUL