IMPORTANT POINT
(1) Non-Tribals have right to settle down in a Scheduled Area.
(2) Any person eligible to vote who is ordinarily residing in Scheduled Area has a right to vote even if he is a non-tribal.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL ASPECTS

1. In exercise of powers under sub-clause (2) of Clause 6 of the Fifth Schedule to the Constitution of India, on 31st December 1977, the Hon’ble President of India declared the entire District of Sundargarh in the State of Orissa as a Scheduled Area (for short, ‘the Scheduled Area’). The appellant, a society registered under the Societies Registration Act, 1860, invoked the writ jurisdiction of the High Court under Article 226 of the Constitution of India. The first contention raised in the writ petition was that in the Scheduled Area, except for the members of the Scheduled Tribes, no one has the right to settle down. A contention was raised in the writ petition that every person, who does not belong to Scheduled Tribe and residing in the Scheduled Area, is an unlawful occupant and, therefore, is disentitled to exercise his right to vote in any constituency in the Scheduled Area. Further contention raised was that every constituency in the Scheduled Area should be declared as a reserved constituency under Articles 330 and 332 of the Constitution of India. It was also contended that no candidate, other than the candidates belonging to the Scheduled Tribes, should have the right to contest the elections of the Legislative Assembly or the Lok Sabha in the Scheduled Area.

2. Another contention raised in the petition is that in view of sub-clause (1) of Clause 5 of the Fifth Schedule unless there is a specific notification issued by the Hon’ble Governor of the State applying any particular Central or State law to a Scheduled Area, none of the provisions of the Central or State laws are applicable to that particular Scheduled Area. Therefore, it was urged that the Representation of the People Act, 1950 (for short, ‘the 1950 Act’) and the Delimitation Act, 2002 (for short, ‘the 2002 Act’) are not applicable to the Scheduled Area in the absence of any such notification. A Division Bench of the High Court of Orissa, by the impugned judgment, dismissed the writ petition. Being aggrieved by the decision of the High Court of Orissa, the present appeal has been preferred pursuant to the grant of leave by this Court vide order dated 14th February 2012.

SUBMISSIONS

3. The first contention raised by the learned counsel appearing for the appellant is that none of the laws enacted by the Central or the State Legislature are applicable to a Scheduled Area unless there is a specific notification issued under sub-clause (1) of Clause 5 of the Fifth Schedule by the Hon’ble Governor declaring that any particular law will be applicable to the Scheduled Area. He submitted that Article 244(1) provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas. Therefore, what is provided in Fifth Schedule shall be considered as a law made by the Constitution of India. His submission is that no law made by the Central or the State Legislature can be applied to a Scheduled Area in the absence of a specific notification issued by the Hon’ble Governor, and therefore, such law shall be treated as null and void. He submitted that only the laws made under the Constitution of India in exercise of power under the Fifth Schedule will apply to the Scheduled Areas. He submitted that any law made by the State or the Central Legislature in its application to the Scheduled Area will be in derogation of the provisions of Article 244 of the Constitution of India and therefore, such laws are void.

4. He submitted that the Hon’ble Governor of the State must first decide which Acts of the Parliament or the State Legislature should apply to Scheduled Areas of the State. After satisfying himself that a particular enactment needs to be applied to a particular Scheduled Area, he must issue a notification making applicable the law to the Scheduled Area. He submitted that unless a specific notification is issued by the Hon’ble Governor clearly incorporating the title and other particulars