A Member Of The Scheduled Tribe Migrating To A Union Territory, Cannot Avail The Status Of The Original State Without A Presidential Order: Supreme Court

Case title:

Chandigarh Housing Board v. Tarsem Lal

Date of Order:

7th February 2024

Bench:

Hon’ble Mr. Justice B.V. Nagarathna

Hon’ble Mr. Justice Augustine George Mashi

Parties:

Appellant: Chandigarh Housing Board

Respondent: Tarsem Lal

SUBJECT:

In the instant case, the Hon’ble Supreme Court of India (hereinafter referred to as ‘the Supreme Court’ or ‘the Court’) adjudicated a matter involving a dispute regarding the entitlement of individuals belonging to Scheduled Tribes (ST) to benefit from the reservation of housing units in Chandigarh. The Court held that without the issuance of a Presidential notice in concerned Union Territories (UT), the said benefits could not be availed. The judgment of the High Court was quashed.

IMPORTANT PROVISIONS:

The Constitution of India, 1950

• Article 341(2)
• Article 342

The Punjab Reorganization Act, 1996

• Section 27(2)

OVERVIEW:

• The appellant issued a notification pursuant to regulation 25 of the Chandigarh Housing Board (Allotment, Management and Sale of tenements) Regulations 1979, on 28.06.1983.
• The advertisement notification called for applications for allotment of houses exclusively for Scheduled Castes and Scheduled Tribe, provided the applicants were domicile of Union Territory (U.T.) of Chandigarh or have been a bona fide resident of U.T. of Chandigarh for a minimum of 3 years on the date of application.35 houses were reserved for the same.
• The respondent was one of the applicants. The list of successful applicants was published on 12.09.1983, wherein 30 houses were allotted.
• An administrative confusion arose about separate reservations for Scheduled Tribes within the dwelling units.
• 4 out of the 35 houses were kept in abeyance as there were only 4 applicants from the ST category, which led to uncertainty about their entitlement to reservation benefits.
• The appellant sought clarification from the Chandigarh Administration about the absence of a Presidential notification under Article 342 even though a notification under Article 341 for the SC in Chandigarh had been issued.
• Therefore, the appellant inquired whether the ST category could be entitled to a minimum of 5% reservation.
• A clarification was issued by the Research Officer to the Finance Secretary of the Chandigarh Administration on 21st September 1983. in response to the appellant’s request.
• Referring to the Brochure on Reservation for SC and ST, the clarification provided that even if the population of ST community was less than 5%, a minimum reservation of 5% could be made for them in respect of all built houses/dwelling units.
• The respondent-plaintiff initiated legal proceedings against the appellant.
• The Court passed a judgment in favour of the respondent on 09.01.1986.
• Aggrieved, the appellant appealed against the judgment which was dismissed by the First Appellate authority, followed by the High Court of Chandigarh.
• The appellant has now appealed before the Supreme Court.

ISSUES RAISED:

Whether the ST category could be entitled to a minimum reservation of 5%?

ARGUMENTS ADVANCED BY THE APPELLANT:

• The advertisement issued on 28.06.1983 was an invitation for applicants to apply for housing and did not stipulate that only members of ST of Chandigarh could apply.
• There was no legal basis on which housing units were to be reserved for ST without a specific Presidential notification recognizing any ST in the UT of Chandigarh. They relied on the ruling of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College for the same.
• As the allotment of the housing units was kept in abeyance due to the absence of a Presidential notification, ST did not have any legal claim to assert.
• Article 342 did not apply to UT of Chandigarh, therefore ST could not simply derive the benefits from the Chandigarh Administration without a specific legal provision.

ARGUMENTS ADVANCED BY THE RESPONDENT:

• The appellant’s decision of not allotting housing units earmarked for ST was mala fide.
• The respondent was eligible to avail the benefits of the housing facility as he is a member of ST, permanently residing in Chandigarh for 20 years.
• The clarification letter dated 21.09.1983 implied that a minimum of 5% reservation could be made for ST despite the ST community only making up less than 5% of the population.
• The advertisement in question did not specifically state that only the members of ST community would apply, suggesting an open eligibility criterion.
• The respondent relied on the ruling of Director, Transport Department, Union Territory Administration of Dadra and Nagar Haveli, Silvassa vs. Abhinav Dipakbhai Patel.

JUDGEMENT ANALYSIS:

• The Supreme Court stressed that public notification of a trice or tribal community by the President of India under Article 342 is important for extending any benefits to the said community in State or U.T.
• The Court further opined that any person claiming benefits on the basis of their status as ST in a State cannot automatically claim the same status in a UT where no such notification is in action.
• The Court relied on the ruling in the case of State of Maharashtra v. Milind, wherein the Apex Court had elucidated the necessity of a public notification under Articles 341 and 342 of the Constitution.
• It was held that without a specific mention in the entry on the Constitution (Scheduled Tribes) Order, 1950, it is not permissible to declare any tribe or tribal community to be included in the list of Scheduled Tribes, as observed in the Milind case (supra).
• The process of recognition and inclusion of tribes or tribal communities as Scheduled Tribes have to follow constitutional protocols and cannot be altered by judicial interpretation or intervention.
• Referring to the case of Bir Singh, the Court clarified that the benefits of SC and ST in employment and education do not extend to UTs without specific Presidential notifications. 
• It was observed that the advertisement issued by the appellant inviting applications from both SC and ST was contrasted with the prevailing law and lacked the necessary jurisdiction and authority.
• The Court opined that the High Court had made an erroneous judgment by relying on certain letters and documents supporting the respondent’s claims.
• The documents in question did not override the constitutional mandate under Article 341 and Article 342 regarding ST.
• The appeal was thus allowed.

CONCLUSION

The Supreme Court set aside the impugned order of the High Court and allowed the appeal. The Court reiterated the necessity of a public notification by the President of India, as per Articles 341 and 342 of the Constitution. It held that in the absence of such notification, persons claiming to belong to the ST community could not derive the benefits in territories where said notification has not been issued. The judgment of the Trial Court was reaffirmed and judgment was passed in favour of the appellant.