Rajasthan High Court Flags Inclusion Of Scheduled Areas Within Municipalities' Limits Due To Legal Vacuum, Issues Hybrid Arrangement

The Rajasthan High Court expressed “serious constitutional concern” wherein Scheduled Areas were being included within municipal corporations' limits in the absence of a legal framework owing to prolonged non-enactment of Municipalities (Extension to the Schedules Area) Bill 2001 (MESA). 

The division bench of Dr. Justice Pushpendra Singh Bhati and Justice Sanjeet Purohit said that in the present constitutional vacuum, where no Parliamentary enactment analogous to Panchayats (Extension to Scheduled Areas) Act, 1996 (such as the proposed MESA) has yet been enacted under Article 243-ZC(3) to provide a tailored municipal governance framework for Scheduled Areas, the administrative arrangement must proceed on a hybrid footing. 

The arrangement states: 

1. Municipal functions relating to urban infrastructure, taxation, civic services, regulation of construction, sanitation, transport, and public health to be exercised under the Rajasthan Municipalities Act, 2009.
2. Constitutional protections of Scheduled Area, especially those relating to land, tribal welfare, resource protection, social safeguards, and regulatory control under the 5th schedule, shall continue to operate and must inform all executive and legislative action.
3. Tribal institutions and consultative mechanisms that previously functioned under PESA to continue solely for limited purpose of safeguarding the interests of Schedules Tribes, particularly in matters affecting land, livelihood, cultural integrity and community resources, and to operate in a consultative and advisory capacity, until the parliament enacted a comprehensive statutory framework extending municipal governance to scheduled areas under Article 243-ZC(3).

The court further directed the State to place before the Union Government the substance of the court's judgment for appropriate legislative consideration so that Scheduled Areas are not left indefinitely within a governance vacuum.

Observing that "Scheduled Areas are constitutionally protected, but not constitutionally frozen" the court said:

“This Court observes that this prolonged legislative inaction has resulted in a constitutional vacuum, wherein Scheduled Areas are being subjected to municipal structures in the absence of a democratically crafted legal framework specifically designed to protect tribal interests within urban governance. In the absence of MESA, municipal inclusion proceeds without the customary safeguards, participatory rights, and community-centric protections which parliament considered indispensable for tribal regions.”

The Court was hearing bunch of petitions challenging notification issued by the State Government under Section 3 read with Section 329 of the Rajasthan Municipalities Act 2009 (“the Act”), wherein several villages and Gram Panchayat areas that fell under the Scheduled Areas notified under Para 6(2) of the 5^th Schedule were included within territorial limits of municipal corporations.  

While hearing the matter, one of the issues formulated by the Court was:

Whether inclusion of a Scheduled Area within municipal limits under the Act resulted in cessation of applicability of Panchayats (Extension to Schedules Areas) Act, 1996 (PESA), having regard to the altered territorial character of the area from village to municipal area?

The Court stated that by enacting PESA, the parliament operationalized the philosophy of 5^th schedule by transforming a constitutional protection into a framework of participatory self-governance.

PESA placed the Gram Sabha at the centre of Scheduled Area Governance and vested it with decisive authority over customary laws, community resources etc, representing a constitutional expression of tribal self-rule.

However, the Court put forth a constitutional concern when a scheduled area was included in municipal limits and its ceased to be a village or panchayat area under Part IX. Due to this, the institutional framework of PESA could not continue in its full operational form within such municipal territory.

At the same time, the Court clarified that such inclusion did not extinguished the constitutional status of the area under 5^th schedule.

Hence, there was an absence of Parliamentary enactment extending the municipal framework of Part IX-A to Scheduled Area, and the provisions of MESA had remained in limbo for more than two decades.

In this background, the Court held that until the parliament discharged its constitutional obligation by enacting MESA, administration of municipalized scheduled areas must proceed with heightened constitutional sensitivity, ensuring that the absence of statutory safeguards did not translate to erosion of trial autonomy, land security, resource control and participatory governance guaranteed Article 244 and 5^th schedule.

In furtherance to the administrative arrangement, the Court held that the State Government and Governor shall ensure that all future action concerning governance, land use, development projects, resource allocation and rehabilitation in municipalized Schedules Areas strictly conformed to protective discipline of the 5^th schedule and constitutional commitment towards scheduled tribes.

The court however held that special constitutional regime governing Scheduled Areas regulates the manner and limits of governance, but does not suspend the operation of validly enacted State law in the absence of a constitutionally sanctioned exclusion.

"This Court holds that a Scheduled Area notified under the Fifth Schedule can, in law, be included within municipal limits under the Rajasthan Municipalities Act, 2009, so long as there exists no notification issued by the Governor under paragraph 5(1) of the Fifth Schedule excluding or modifying the operation of the said Act in respect of such area," it said. 

It thus upheld the constitutional validity of the notifications and disposed of the pleas. 

Title: Anil Kumar Meena & Anr. v State of Rajasthan & Ors, and other connected petitions

Citation: 2026 LiveLaw (Raj) 10

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