Full Judgment Text
2014:BHC-AS:351-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2327 OF 2012
Mrs. Shailaja Sunil Kolpe ]
Pushpa Emrald Housing Society ]
A Wing, Flat No. 101, Survey No.75 ]
Near Wonder City, Katraj ]
Pune 411 046 ] ..Petitioner
versus
1. State of Maharashtra ]
(summons to be served on the ]
learned Government Pleader ]
appearing for State of Maharashtra ]
under Order XXVII Rule 4 of the ]
Code of Civil Procedure, 1908) ]
2. District Collector Pune ]
(summons to be served on the ]
learned Government Pleader ]
appearing for State of Maharashtra ]
under Order XXVII Rule 4 of the ]
Code of Civil Procedure, 1908) ]
3. State Election Commission ]
Maharashtra, First floor, ]
New Administrator Building, ]
Hutatma Rajguru Chowk, ]
Madam Cama Road, ]
Mumbai 400032 ]
4. Election Officer Zilla Parishad ]
Panchayat Samiti, Election 2012, ]
Velhe, Taluka – Velhe ]
District Pune ]
5. Panchayat Samittee Welhe, ]
Taluka : Welhe, District : Pune ]
6. Mrs. Chatura Keshav Nagine ]
Age Adult, Residing At & Post: Velhe]
Bazar Peth, Taluka : Welhe ]
District : Pune ] ..Respondents
Mr. S. B. Deshmukh for Petitioner.
Mrs M. P. Thakur – A.G.P. for Respondent Nos. 1 and 2.
Mr. S. B. Shetye for Respondent No. 3.
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CORAM : A. S. OKA & M. S. SONAK, JJ.
08TH JANUARY 2014
JUDGMENT (Per : M. S. Sonak, J. )
1] Rule. With the consent of the learned counsel appearing for
the Respondents, the Rule is made returnable forthwith.
2] The main challenge in this petition is to the vires of
' Explanation ' to Rule 3 of the Maharashtra Zilla Parishads and
Panchayat Samitis (Manner and Rotation of Reservation of Seats)
Rules, 1996, on the grounds that the same travels beyond the
substantive provision contained in Section 12 of the Maharashtra
Zilla Parishads and Panchayat Samitis Act, 1961 and further
violates the provisions of the Constitution of India.
3] The aforesaid Rule 3 and Section 12 concerns determination
of number of seats to be reserved for the Scheduled Castes,
Scheduled Tribes, Backward Class of citizens and women for
general election to the Zilla Parishad.
4] From the averments in the petition however, the Petitioner
appears to be concerned with election of Panchayat Samiti, Taluka
Velhe, in respect of which the post of Chair Person has been
reserved for Scheduled Tribe Woman. In the circumstances, the
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Petitioner's challenge ought to have been directed against
'Explanation' to Rule 7 of the 1996 as being allegedly ultra vires
Section 58 of the said 1961 Act.
5] However, since there is no appreciable difference between
Rule 3 and Section 12 on one hand and Rule 7 and Section 58 on
the other, except that the former set concerns Zilla Parishads and
the later set concerns Panchayat Samitis, we proceed to consider
the challenge to the 'Explanation' to Rules 3 and 7 of the 1996
Rules.
6] The Petitioner, who is a citizen of India and the resident of
Velhe claims to be a member of the Scheduled Tribe. By the
Notification dated 12.12.2011 the post of Chair Person in the
Panchayat Samiti of Velhe has been reserved for Scheduled Tribe
women. Reference is made in the Petition to letter dated
07.10.2011, which interalia indicates that the total population
comprising limits of Panchayat Samiti Velhe is 55874. Out of this,
the population of Scheduled Caste members is 2773 and the
Scheduled Tribe members is 1439. This is as per the 2001 census.
Annexure 5 to this letter contains the workings of the manner in
which the seat reservations have been determined. There is no
serious dispute that the workings are in terms of Section 58 of the
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1961 Act read with Rule 2(A) of the Maharashtra Zilla Parishads
(Electoral Divisions and Conduct of Election) Rules 1962. Further,
there is no dispute that the workings are in accordance with the
Rule 7 of 1996 Rules as well as the Explanation appended thereto.
Accordingly, in so far as the Panchayat Samiti of Velhe is
concerned, based upon such workings, it is seen that not even a
single seat can be reserved for members of Scheduled Tribes and
Scheduled Castes. The workings as contained in Annexure 5 are as
follows:
SEATS 2776 x 4
(Population of S.C.) (Total No. of Seats)
SEATS = -------------------------------------------------------- =0.20
55874
(Total Population)
1439 x 4
(Population of S.T.) (Total No. of Seats)
SEATS =------------------------------------------------------------ = 0.10
55874
(Total population)
* As per the Explanations to Rules 3 and 7 of 1996 Rules, while
determining the number of seats, the fraction of one half or more of
a seat shall be counted as one and the fraction of less than one half
shall be ignored.
* In the present case, since the fraction in respect of S.T. And
S.C. is less than one half, the same is ignored. Accordingly, no
seats have been reserved for the members of S.T. and S.C.
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7] The Petitioner, by reference to Sections 12 and 58 of the
1961 Act contends that there is a mandate for reservation of seats
for the members of S.C., S.T. B.C and Women at elections to the
Zilla Parishad and Panchayat Samiti. Under the garb of
determination of the quantum and the manner of reservation, by
resort to Rules 3 and 7 of the 1996 Rules, it is impermissible for the
State Government to create a situation whereby not even a single
seat is reserved for the members of S.C., S.T, O.B.C. at elections to
Zilla Parishad or Panchayat Samiti. Such a situation will patently
defeat the reservation provided for Scheduled Tribe Women in the
post of Chair Person, Velhe Panchayat Samiti. The 'Explanation' to
Rules 3 and 7, which are primarily responsible for bringing about
such a situation, therefore travel beyond the substantive provisions
contained in Sections 12 and 58 of the 1961 Act. The 'explanation'
is therefore ultra vires. Even otherwise, such 'explanation' which is
the prime cause for denial of reservation of even a single seat in
the context of Panchayat Samiti Velhe, is ex facie arbitrary, illegal,
unconstitutional, null and void.
8] Affidavits in reply have been filed by the Respondent Nos. 1
and 2, in which it is contended that determination of seats is in
accordance with the provisions of the 1961 Act and the 1996 Rules.
Further, the return points out that the Petitioner had filed her
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nomination on 20.01.2012 from 114 – Margasani Gan reserved for
ladies of General Category for the Zilla Parishads and Panchayat
Samiti Election 2012. The nomination was declared valid in the
scrutiny held on 24.01.2012. However, later on the Petitioner
withdrew her nomination on 30.01.2012 which was the date fixed for
withdrawal. In such circumstances, it is submitted that the present
petition be not entertained. Further it is pointed out that elections
have taken place on 14.03.2012, in which Mrs. Chatura Keshav
Nagine has been elected as a Chair person of the Panchayat Samiti
Velhe.
9] In the petition, Mr. Deshmukh, the learned counsel for the
Petitioner realising that most of the reliefs claimed are
consequential to the main challenge, has rightly advanced
submissions pertaining to the vires of explanations to Rules 3 and 7
of the 1996 Rules. In a light of such focused challenge, we do not
deem it appropriate to advert to the other issues which find place in
the memo of the writ petition, but which were rightly not urged at the
time of arguments.
10] In order to appreciate the challenge, reference is required to
be made to provisions of the 1961 Act and the 1996 Rules which
have direct bearing upon the issues raised in the petition.
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11] Section 12 of the 1961 Act provides for division of district into
electoral division for purposes of elections to Zilla Parishad. Section
12(2) which is relevant for the purposes of the present petition,
reads thus :
“ S.12. Division of District into electoral division . –
[ (2) (a) In the seats to be filled in by election in a
Zilla Parishad there shall be seats reserved for persons
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women, as may be
determined by the State Election Commission in the
prescribed manner;
(b) the seats to be reserved for the persons
belonging to the Scheduled Castes and the Scheduled
Tribes in a Zilla Parishad shall bear, as nearly as may
be, the same proportion to the total number of seats to
be filled in by direct election in that Zilla Parishad as the
population of the Scheduled Castes or, as the case may
be , the Scheduled Tribes, in that Zilla Parishad area
bears to the total population of that area and such seats
shall be allotted by rotation to different electoral divisions
in a Zilla Parishad :
[Provided that, in a Zilla Parishad comprising
entirely the Scheduled areas, the seats to be reserved
for the Scheduled Tribes shall not be less than one half
of the total number of seats in the Zilla Parishad :
Provided further that, the reservation for the
Scheduled Tribes in a Zilla Parishad falling only partially
in the Scheduled areas shall be in accordance with the
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provisions of clause (b)]:
12] Section 58 deals with the provisions regarding electoral
colleges, disqualifications, elections and election disputes
concerning Panchayat Samitis. A portion of Section 58 (1B) which is
relevant for the purposes of the present petition, reads thus :
“ [(1B) (a) In the seats to be filled in by
election in a Panchayat Samiti, there shall be seats
reserved for persons belonging to the Scheduled
Castes, Scheduled Tribes, Backward Class of
citizens and women, as may be determined by the
State Election Commission in the prescribed
manner;
(b) The seats to be reserved for the persons
belonging to the Scheduled Castes and the
Scheduled Tribes in a Panchayat Samiti shall bear,
as nearly as may be, the same proportion, to the
total number of seats to be filled in by direct
election in that Panchayat Samiti as the population
of the Scheduled Castes or, as the case may be,
the Scheduled Tribes, in that Panchayat Samiti
area bears to the total population of that area and
such seats shall be allotted by rotation to different
electoral colleges in a Panchayat Samiti :
Provided that, in a Panchayat Samiti
comprising entirely the Scheduled areas, the seats
to be reserved for the Scheduled Tribes shall not
be less than one-half of the total number of seats
in the Panchayat Samiti :
Provided further that, the reservation for
Scheduled Tribes in the Panchayat Samiti falling
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only partially in the Scheduled areas shall be in
accordance with the provisions of clause (b)] :
[Provided also that], one-half of the total
number of seats so reserved shall be reserved for
women belonging to the Scheduled Castes or, as
the case may be, the Scheduled Tribes;”
13] Section 2(21) defines the term “prescribed” to mean
prescribed by Rules made under this Act. Similarly, Section 2(31A)
defines “State Election Commission” to mean State Election
Commission consisting of State Election Commissioner appointed
in accordance with Clause (1) of Article 243K of the Constitution of
India.
14] Section 274(1) empowers the State Government to make
Rules not inconsistent with the provisions of the Act, for the
purposes of carrying into effect the provisions of the Act.
Section 274(2) in particular and without prejudice to the
generality of the provisions contained in sub section (1) empowers
the State Government to make rules for the various matters
specified, including interalia:
“(ii) under section 12, prescribing the seats to be
reserved for representation of the Scheduled
Castes, Scheduled Tribes, Backward Class of
citizens and women in any electoral division and
the manner and rotation of such reservation.
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(xiii) under section 58, prescribing the seats to be
reserved for Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women in electoral
colleges and the manner and rotation of such
reservation.”
15] In exercise of the powers conferred by clauses (ii) and (xiii) of
sub section 2 of Section 274 of the Act, the State Government has
framed the Rules of 1996. Rules 3 and 7 which are relevant for the
purposes of the present petition, reads thus :
“3. State Election Commission to determine the
number of seats to be reserved for the Scheduled
Castes, Scheduled Tribes, Backward Class of Citizens
and Women.”
For every general election to a Zilla Parishad the
State Election Commission shall determine, out of the
total number of seats to be filled in by section, the
number of seats to be reserved for persons belonging
to the Scheduled Castes, Scheduled Tribes, Backward
Class of Citizens and Women as provided in sub-
section (2) of section 12 of the Act.
Explanation.- While determining the number
of seats, the fraction of one half or more of a seat
shall be counted as one and the fraction of less
than one-half shall be ignored.”
7. State Election Commission to determine number
of seats to be reserved for the Scheduled Castes,
Scheduled Tribes, Backward Class of Citizens and
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Women.-
For every general election to a Panchayat Samiti,
the State Election Commission shall determine, out of
the total number of seats to be filled in by election, the
number of seats to be reserved for persons belonging
to the Scheduled Castes, Scheduled Tribes, Backward
Class of Citizens and Women, as provided in sub-
section (1B) of section 54 of the Act.
Explanation.- While determining the number
of seats, the fraction of one-half or more of a seat
shall be counted as one and the fraction of less
than one-half shall be ignored.”
16] As observed above, there is no appreciable difference
between the provisions contained in Section 12(2)(a) and Section
58(1B)(a) of the Act, except that the former concerns elections to
the Zilla Parishad and the later concern selections to Panchayat
Samitis. Mr. Deshmukh, learned counsel for the Petitioner contends
that these sections mandate reservation of seats for S.C., S.T.
O.B.C. and Women and therefore for elections to Zilla Parishad and
Panchayat Samitis, at least one seat has to be reserved for the said
categories irrespective of the population figures as may be reflected
in the census. Mr. Deshmukh submitted that the mandate of the
substantive provisions contained in Section 12(2)(a) and Section
58(1B)(a) cannot be whittled down or virtually abrogated by
recourse to 'explanation' appended to Rules 3 and 7 of the 1996
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Rules. To the extent such 'explanation' whittles down and abrogates
the substantive provisions as contained in Sections 12(2)(a) and
58(1B)(a), 'explanation' is ultra vires, inoperable, null and void.
17] Having considered the submissions in the backdrop of the
aforesaid legal provisions as also the provisions contained in the
Constitution of India, we are unable to see any merit in the
submissions of Mr. Deshmukh.
18] In the first place, the submissions proceed on the basis of an
incomplete reading or misreading of the provisions contained in
Sections 12(2) and 58(1B) of the Act. Undoubtedly Sections 12(2)
and 58(1B) make provisions for reservation of seats for S.T., S.T.,
O.B.C. and Women. However, the very Sections provide that such
reservation shall be determined by the State Election Commission
and that too in the 'prescribed manner'. Therefore, it is fallacious to
read a part of the Section and urge that reservation of at least one
seat for S.C. S.T is a mandate, irrespective of the position of the
population of seat numbers in a Zilla Parishad and Panchayat
Samiti area. The quantum of reservation or the determination of
number of seats to be reserved has been left by the Legislature
itself to the determination of the State Election Commission as
defined under Section 2(31) of the said Act. Further, the legislature
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has provided that the State Election Commission has to make such
determination in the 'prescribed manner'.
19] As observed earlier, Section 2(21) of the said Act defines
'prescribed' to mean ' prescribed by the Rules made under this
Act '. The 1996 Rules, are Rules made under the said Act in
exercise of powers conferred by the State Government by Sections
274(2)(ii) and (xiii) of the said Act. Therefore, where the parent Act
itself empowers the State Election Commission to determine the
number of reserved seats in the manner prescribed under the
Rules, there can arise no question of the Rules or the Explanation
appended to the Rules being ultra vires the provisions of the parent
Act. It bears a repetition to state that the parent Act does not
mandate reservation for S.C. S.T. members irrespective of the
population position of S.C. and S.T. members in the Zilla Parishad
or Panchayat Samiti areas. On the contrary, Sections 12(2)(b) and
Section 58(1B)(b) which concerns quantum of reserved seats,
provides that the seats to be reserved for the persons belonging to
S. C. and S.T. in a Zilla Parishad or Panchayat Samiti area shall
bear as nearly as may be, the same proportion of the total number
of seats to be filled by direct elections in that Zilla Parishad or
Panchayat Samiti as the population of S.C. or S.T. in that Zilla
Parishad or Panchayat Samiti area bears to the total population of
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that area.
20] Thus, population based proportionate representation is not
only the accepted but the prescribed norm. This is virtually
reiterated in Rules 3 and 7 of the 1996 Rules. The Explanation to
Rules 3 and 7 makes express, what possibly was implicit in the
phrase “ as nearly as may be ' employed in Sections 12(2)(b) and
58(1B)(b) of the said Act. In the context of determination of
quantum of reservation, the Explanation merely provides that
fraction of one half or more of a seat shall be counted as one and
conversely fraction of less than one half shall be ignored. In our
opinion, neither the Rules 3 and 7 nor the Explanation thereto travel
beyond or abrogate or cut down the scope and import of Section
12(2) or Section 58(1B) of the said Act. The Rules together with the
Explanation merely prescribe the manner of determination of
reserved seats, which manner is entirely consistent with the
provisions contained in the parent Act. The challenge based upon
substantive ultra vires, accordingly fails and deserves rejection.
21] The second challenge based upon arbitrariness and
therefore unconstitutionality also does not commend to us. As
observed earlier all that the Explanation does, is to give effect to the
phrase ' as nearly as may be ' employed in Sections 12(2)(b) and
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58(1B)(b) of the said Act. Further, the said two Sections are
premised upon the principle of population based proportionate
representation. In order that ambiguities in interpretation are
reduced, if not wholly wiped out, if the State Government in exercise
of its rule making power provides an Explanation that fraction of
one half or a more of a seat shall be counted as one and fraction of
less than one half ignored, we can detect no arbitrariness or
unconstitutionality in such an approach. The principle of population
based proportionate representation is discernible in Article 243D of
the Constitution of India upon which the provisions contained in
Sections 12(2) and Section 58(1B) of the said Act are premised.
Article 243D(1) of the Constitution of India reads thus :
“243D. Reservation of seats .- (1) Seats shall be
reserved for -
(a) the Scheduled Castes; and
(b) the Scheduled Tribes,
in every Panchayat and the number of seats so
reserved shall bear, as nearly as may be, the same
proportion to the total number of seats to be filled by
direct election in that Panchayat as the population of
the Scheduled Castes in that Panchayat area or of
the Scheduled Tribes in that Panchayat area bears to
the total population of that area and such seats may
be allotted by rotation to different constituencies in a
Panchayat.”
22] The very same principle of population based proportionate
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representation is discernible in Article 243T (concerning
Municipalities), Article 330 (concerning House of People) and Article
332 (concerning Legislative Assemblies of State) of the
Constitution of India. In all these Articles it is provided that seats
shall be reserved for S.C. and S.T. and the number of seats
reserved shall bear, ' as nearly as may be ', the same proportion to
the total number of seats in the Municipality, House of People or
Legislative Assembly of the State as the case may be, as the
population of S.C. and S.T. in the municipal area or State as the
case may be, in respect of which seats are so reserved, bears to
the total population of the Municipal area or State, as the case may
be. In a situation where departure was intended, as for example in
the case of Anglo Indian Community, specific provisions have been
made making express such intent.
23] The provisions contained in Sections 12(2) and 58(1B) of the
said Act are entirely consistent with the prescribed norm of
population based proportionate representation. The same is the
position with Rules 3 and 7 read with the Explanations thereto in
the 1996 Rules. If the population of S.C. or S.T. in a given area is
so minuscule, that upon applying the norms prescribed, the fraction
is less than one half of a seat, then surely the Rules can provide
that such fraction be ignored. Similarly, if the fraction is one half or
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even marginally more than one half, then the seat shall be counted
as one. Such a Rule or any Explanation appended to the Rule
neither travels beyond the provisions in the parent Act, nor can the
same be stigmatized as being arbitrary, unconstitutional, null and
void.
24] In the case of Anand Singh Kunwar & Ors. vs. Election
1
Commission of India the Election Commission of India, the issue
concerned determination of reserved seats to the Legislative
Assembly of Uttaranchal. The census data indicated the population
of Scheduled Tribes in the State as being 3% of the total population.
The total number of seats in the Legislative Assemble were 70. By
reference to Article 332(3) of the Constitution of India, the number of
seats, as nearly as may be , had to be to the extent of 3% of 70
seats. This figure came to 2.1 which was nearly to 2 seats than to 3
seats. However, the Election Commission went on to reserve 3
seats for the members of the Scheduled Tribes and the issue before
the Supreme Court was whether reservation of 3 seats instead of 2
was contrary to the provisions of Article 332(3) of the constitution of
India.
25] During pendency of the petition however, the Election
Commission upon realising its mistake reduced the number of
1 (2007) 7 SCC 234
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reserved seats for the members of S.T. from 3 to 2 and issued an
appropriate Notification in that regard. Despite the challenge / issue
having become academic, the Supreme Court at paragraph 5,
observed thus :
“5. Though now the issue is purely academic
because the Election Commission having realised its
mistake has reduced the number of seats of
Scheduled Tribes from three (3) to two (2) and the
notification to this effect has already been issued but
in order to justify the order dated 5-11-2001 the
Election Commission has made certain observations
which need not be repeated again. It should be
made clear that the mandate of Article 332(3) of the
Constitution of India should always be kept in mind.
Article 332(3) mandates that the reservation must be
made in proportion to the population of the
Scheduled Castes and Scheduled Tribes of the
State. This should be the paramount consideration of
the Election Commission and not any other
consideration. We need not make any observation
but the consideration for increasing the seats of
Scheduled Tribes from two (2) to three (3) was not at
all warranted as it is in violation of Article 332(3) of
the Constitution of India. The mandate of the
Constitution is supreme and the Election
Commission has no scope to go beyond the
Constitution. Therefore, we hope and trust that when
any notification is issued, the Election Commission
shall confine itself to the mandate of the provisions of
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the Constitution of India and will not be swayed by
any other consideration.” (Emphasis supplied).
26] Thus, it is clear that in matters of reservation of these types
governed by provisions like Article 332 of the Constitution of India
reservations have to be based upon the principle of population
based proportionate representation. The phrase ' as nearly as may
be ' employed in Articles 243D, 243T, 330 and 332 by itself supports
the construction commended by Explanation to Rules 3 and 7 of the
1996 Rules. The expression ' as nearly as may be ' significantly finds
place in Sections 12(2)(b) and Section 58(1B)(b) of the said Act as
well. The Explanation to Rules 3 and 7, in the circumstances assists
in the implementation of the principle of population based
proportionate representation, which as observed by the Supreme
Court has to be 'paramount consideration' of the Election
Commission and not any other consideration. This is yet another
reason to reject the challenge based upon arbitrariness and
consequently, unconstitutionality.
27] In conclusion, we see no merit in either of the contentions of
the Petitioner. The petition is accordingly rejected. Rule is
discharged. However, there shall be no order as to costs.
(M. S. SONAK, J.) (A. S. OKA, J.)
Chandka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2327 OF 2012
Mrs. Shailaja Sunil Kolpe ]
Pushpa Emrald Housing Society ]
A Wing, Flat No. 101, Survey No.75 ]
Near Wonder City, Katraj ]
Pune 411 046 ] ..Petitioner
versus
1. State of Maharashtra ]
(summons to be served on the ]
learned Government Pleader ]
appearing for State of Maharashtra ]
under Order XXVII Rule 4 of the ]
Code of Civil Procedure, 1908) ]
2. District Collector Pune ]
(summons to be served on the ]
learned Government Pleader ]
appearing for State of Maharashtra ]
under Order XXVII Rule 4 of the ]
Code of Civil Procedure, 1908) ]
3. State Election Commission ]
Maharashtra, First floor, ]
New Administrator Building, ]
Hutatma Rajguru Chowk, ]
Madam Cama Road, ]
Mumbai 400032 ]
4. Election Officer Zilla Parishad ]
Panchayat Samiti, Election 2012, ]
Velhe, Taluka – Velhe ]
District Pune ]
5. Panchayat Samittee Welhe, ]
Taluka : Welhe, District : Pune ]
6. Mrs. Chatura Keshav Nagine ]
Age Adult, Residing At & Post: Velhe]
Bazar Peth, Taluka : Welhe ]
District : Pune ] ..Respondents
Mr. S. B. Deshmukh for Petitioner.
Mrs M. P. Thakur – A.G.P. for Respondent Nos. 1 and 2.
Mr. S. B. Shetye for Respondent No. 3.
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CORAM : A. S. OKA & M. S. SONAK, JJ.
08TH JANUARY 2014
JUDGMENT (Per : M. S. Sonak, J. )
1] Rule. With the consent of the learned counsel appearing for
the Respondents, the Rule is made returnable forthwith.
2] The main challenge in this petition is to the vires of
' Explanation ' to Rule 3 of the Maharashtra Zilla Parishads and
Panchayat Samitis (Manner and Rotation of Reservation of Seats)
Rules, 1996, on the grounds that the same travels beyond the
substantive provision contained in Section 12 of the Maharashtra
Zilla Parishads and Panchayat Samitis Act, 1961 and further
violates the provisions of the Constitution of India.
3] The aforesaid Rule 3 and Section 12 concerns determination
of number of seats to be reserved for the Scheduled Castes,
Scheduled Tribes, Backward Class of citizens and women for
general election to the Zilla Parishad.
4] From the averments in the petition however, the Petitioner
appears to be concerned with election of Panchayat Samiti, Taluka
Velhe, in respect of which the post of Chair Person has been
reserved for Scheduled Tribe Woman. In the circumstances, the
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Petitioner's challenge ought to have been directed against
'Explanation' to Rule 7 of the 1996 as being allegedly ultra vires
Section 58 of the said 1961 Act.
5] However, since there is no appreciable difference between
Rule 3 and Section 12 on one hand and Rule 7 and Section 58 on
the other, except that the former set concerns Zilla Parishads and
the later set concerns Panchayat Samitis, we proceed to consider
the challenge to the 'Explanation' to Rules 3 and 7 of the 1996
Rules.
6] The Petitioner, who is a citizen of India and the resident of
Velhe claims to be a member of the Scheduled Tribe. By the
Notification dated 12.12.2011 the post of Chair Person in the
Panchayat Samiti of Velhe has been reserved for Scheduled Tribe
women. Reference is made in the Petition to letter dated
07.10.2011, which interalia indicates that the total population
comprising limits of Panchayat Samiti Velhe is 55874. Out of this,
the population of Scheduled Caste members is 2773 and the
Scheduled Tribe members is 1439. This is as per the 2001 census.
Annexure 5 to this letter contains the workings of the manner in
which the seat reservations have been determined. There is no
serious dispute that the workings are in terms of Section 58 of the
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1961 Act read with Rule 2(A) of the Maharashtra Zilla Parishads
(Electoral Divisions and Conduct of Election) Rules 1962. Further,
there is no dispute that the workings are in accordance with the
Rule 7 of 1996 Rules as well as the Explanation appended thereto.
Accordingly, in so far as the Panchayat Samiti of Velhe is
concerned, based upon such workings, it is seen that not even a
single seat can be reserved for members of Scheduled Tribes and
Scheduled Castes. The workings as contained in Annexure 5 are as
follows:
SEATS 2776 x 4
(Population of S.C.) (Total No. of Seats)
SEATS = -------------------------------------------------------- =0.20
55874
(Total Population)
1439 x 4
(Population of S.T.) (Total No. of Seats)
SEATS =------------------------------------------------------------ = 0.10
55874
(Total population)
* As per the Explanations to Rules 3 and 7 of 1996 Rules, while
determining the number of seats, the fraction of one half or more of
a seat shall be counted as one and the fraction of less than one half
shall be ignored.
* In the present case, since the fraction in respect of S.T. And
S.C. is less than one half, the same is ignored. Accordingly, no
seats have been reserved for the members of S.T. and S.C.
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7] The Petitioner, by reference to Sections 12 and 58 of the
1961 Act contends that there is a mandate for reservation of seats
for the members of S.C., S.T. B.C and Women at elections to the
Zilla Parishad and Panchayat Samiti. Under the garb of
determination of the quantum and the manner of reservation, by
resort to Rules 3 and 7 of the 1996 Rules, it is impermissible for the
State Government to create a situation whereby not even a single
seat is reserved for the members of S.C., S.T, O.B.C. at elections to
Zilla Parishad or Panchayat Samiti. Such a situation will patently
defeat the reservation provided for Scheduled Tribe Women in the
post of Chair Person, Velhe Panchayat Samiti. The 'Explanation' to
Rules 3 and 7, which are primarily responsible for bringing about
such a situation, therefore travel beyond the substantive provisions
contained in Sections 12 and 58 of the 1961 Act. The 'explanation'
is therefore ultra vires. Even otherwise, such 'explanation' which is
the prime cause for denial of reservation of even a single seat in
the context of Panchayat Samiti Velhe, is ex facie arbitrary, illegal,
unconstitutional, null and void.
8] Affidavits in reply have been filed by the Respondent Nos. 1
and 2, in which it is contended that determination of seats is in
accordance with the provisions of the 1961 Act and the 1996 Rules.
Further, the return points out that the Petitioner had filed her
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nomination on 20.01.2012 from 114 – Margasani Gan reserved for
ladies of General Category for the Zilla Parishads and Panchayat
Samiti Election 2012. The nomination was declared valid in the
scrutiny held on 24.01.2012. However, later on the Petitioner
withdrew her nomination on 30.01.2012 which was the date fixed for
withdrawal. In such circumstances, it is submitted that the present
petition be not entertained. Further it is pointed out that elections
have taken place on 14.03.2012, in which Mrs. Chatura Keshav
Nagine has been elected as a Chair person of the Panchayat Samiti
Velhe.
9] In the petition, Mr. Deshmukh, the learned counsel for the
Petitioner realising that most of the reliefs claimed are
consequential to the main challenge, has rightly advanced
submissions pertaining to the vires of explanations to Rules 3 and 7
of the 1996 Rules. In a light of such focused challenge, we do not
deem it appropriate to advert to the other issues which find place in
the memo of the writ petition, but which were rightly not urged at the
time of arguments.
10] In order to appreciate the challenge, reference is required to
be made to provisions of the 1961 Act and the 1996 Rules which
have direct bearing upon the issues raised in the petition.
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11] Section 12 of the 1961 Act provides for division of district into
electoral division for purposes of elections to Zilla Parishad. Section
12(2) which is relevant for the purposes of the present petition,
reads thus :
“ S.12. Division of District into electoral division . –
[ (2) (a) In the seats to be filled in by election in a
Zilla Parishad there shall be seats reserved for persons
belonging to the Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women, as may be
determined by the State Election Commission in the
prescribed manner;
(b) the seats to be reserved for the persons
belonging to the Scheduled Castes and the Scheduled
Tribes in a Zilla Parishad shall bear, as nearly as may
be, the same proportion to the total number of seats to
be filled in by direct election in that Zilla Parishad as the
population of the Scheduled Castes or, as the case may
be , the Scheduled Tribes, in that Zilla Parishad area
bears to the total population of that area and such seats
shall be allotted by rotation to different electoral divisions
in a Zilla Parishad :
[Provided that, in a Zilla Parishad comprising
entirely the Scheduled areas, the seats to be reserved
for the Scheduled Tribes shall not be less than one half
of the total number of seats in the Zilla Parishad :
Provided further that, the reservation for the
Scheduled Tribes in a Zilla Parishad falling only partially
in the Scheduled areas shall be in accordance with the
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provisions of clause (b)]:
12] Section 58 deals with the provisions regarding electoral
colleges, disqualifications, elections and election disputes
concerning Panchayat Samitis. A portion of Section 58 (1B) which is
relevant for the purposes of the present petition, reads thus :
“ [(1B) (a) In the seats to be filled in by
election in a Panchayat Samiti, there shall be seats
reserved for persons belonging to the Scheduled
Castes, Scheduled Tribes, Backward Class of
citizens and women, as may be determined by the
State Election Commission in the prescribed
manner;
(b) The seats to be reserved for the persons
belonging to the Scheduled Castes and the
Scheduled Tribes in a Panchayat Samiti shall bear,
as nearly as may be, the same proportion, to the
total number of seats to be filled in by direct
election in that Panchayat Samiti as the population
of the Scheduled Castes or, as the case may be,
the Scheduled Tribes, in that Panchayat Samiti
area bears to the total population of that area and
such seats shall be allotted by rotation to different
electoral colleges in a Panchayat Samiti :
Provided that, in a Panchayat Samiti
comprising entirely the Scheduled areas, the seats
to be reserved for the Scheduled Tribes shall not
be less than one-half of the total number of seats
in the Panchayat Samiti :
Provided further that, the reservation for
Scheduled Tribes in the Panchayat Samiti falling
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only partially in the Scheduled areas shall be in
accordance with the provisions of clause (b)] :
[Provided also that], one-half of the total
number of seats so reserved shall be reserved for
women belonging to the Scheduled Castes or, as
the case may be, the Scheduled Tribes;”
13] Section 2(21) defines the term “prescribed” to mean
prescribed by Rules made under this Act. Similarly, Section 2(31A)
defines “State Election Commission” to mean State Election
Commission consisting of State Election Commissioner appointed
in accordance with Clause (1) of Article 243K of the Constitution of
India.
14] Section 274(1) empowers the State Government to make
Rules not inconsistent with the provisions of the Act, for the
purposes of carrying into effect the provisions of the Act.
Section 274(2) in particular and without prejudice to the
generality of the provisions contained in sub section (1) empowers
the State Government to make rules for the various matters
specified, including interalia:
“(ii) under section 12, prescribing the seats to be
reserved for representation of the Scheduled
Castes, Scheduled Tribes, Backward Class of
citizens and women in any electoral division and
the manner and rotation of such reservation.
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(xiii) under section 58, prescribing the seats to be
reserved for Scheduled Castes, Scheduled Tribes,
Backward Class of citizens and women in electoral
colleges and the manner and rotation of such
reservation.”
15] In exercise of the powers conferred by clauses (ii) and (xiii) of
sub section 2 of Section 274 of the Act, the State Government has
framed the Rules of 1996. Rules 3 and 7 which are relevant for the
purposes of the present petition, reads thus :
“3. State Election Commission to determine the
number of seats to be reserved for the Scheduled
Castes, Scheduled Tribes, Backward Class of Citizens
and Women.”
For every general election to a Zilla Parishad the
State Election Commission shall determine, out of the
total number of seats to be filled in by section, the
number of seats to be reserved for persons belonging
to the Scheduled Castes, Scheduled Tribes, Backward
Class of Citizens and Women as provided in sub-
section (2) of section 12 of the Act.
Explanation.- While determining the number
of seats, the fraction of one half or more of a seat
shall be counted as one and the fraction of less
than one-half shall be ignored.”
7. State Election Commission to determine number
of seats to be reserved for the Scheduled Castes,
Scheduled Tribes, Backward Class of Citizens and
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Women.-
For every general election to a Panchayat Samiti,
the State Election Commission shall determine, out of
the total number of seats to be filled in by election, the
number of seats to be reserved for persons belonging
to the Scheduled Castes, Scheduled Tribes, Backward
Class of Citizens and Women, as provided in sub-
section (1B) of section 54 of the Act.
Explanation.- While determining the number
of seats, the fraction of one-half or more of a seat
shall be counted as one and the fraction of less
than one-half shall be ignored.”
16] As observed above, there is no appreciable difference
between the provisions contained in Section 12(2)(a) and Section
58(1B)(a) of the Act, except that the former concerns elections to
the Zilla Parishad and the later concern selections to Panchayat
Samitis. Mr. Deshmukh, learned counsel for the Petitioner contends
that these sections mandate reservation of seats for S.C., S.T.
O.B.C. and Women and therefore for elections to Zilla Parishad and
Panchayat Samitis, at least one seat has to be reserved for the said
categories irrespective of the population figures as may be reflected
in the census. Mr. Deshmukh submitted that the mandate of the
substantive provisions contained in Section 12(2)(a) and Section
58(1B)(a) cannot be whittled down or virtually abrogated by
recourse to 'explanation' appended to Rules 3 and 7 of the 1996
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Rules. To the extent such 'explanation' whittles down and abrogates
the substantive provisions as contained in Sections 12(2)(a) and
58(1B)(a), 'explanation' is ultra vires, inoperable, null and void.
17] Having considered the submissions in the backdrop of the
aforesaid legal provisions as also the provisions contained in the
Constitution of India, we are unable to see any merit in the
submissions of Mr. Deshmukh.
18] In the first place, the submissions proceed on the basis of an
incomplete reading or misreading of the provisions contained in
Sections 12(2) and 58(1B) of the Act. Undoubtedly Sections 12(2)
and 58(1B) make provisions for reservation of seats for S.T., S.T.,
O.B.C. and Women. However, the very Sections provide that such
reservation shall be determined by the State Election Commission
and that too in the 'prescribed manner'. Therefore, it is fallacious to
read a part of the Section and urge that reservation of at least one
seat for S.C. S.T is a mandate, irrespective of the position of the
population of seat numbers in a Zilla Parishad and Panchayat
Samiti area. The quantum of reservation or the determination of
number of seats to be reserved has been left by the Legislature
itself to the determination of the State Election Commission as
defined under Section 2(31) of the said Act. Further, the legislature
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has provided that the State Election Commission has to make such
determination in the 'prescribed manner'.
19] As observed earlier, Section 2(21) of the said Act defines
'prescribed' to mean ' prescribed by the Rules made under this
Act '. The 1996 Rules, are Rules made under the said Act in
exercise of powers conferred by the State Government by Sections
274(2)(ii) and (xiii) of the said Act. Therefore, where the parent Act
itself empowers the State Election Commission to determine the
number of reserved seats in the manner prescribed under the
Rules, there can arise no question of the Rules or the Explanation
appended to the Rules being ultra vires the provisions of the parent
Act. It bears a repetition to state that the parent Act does not
mandate reservation for S.C. S.T. members irrespective of the
population position of S.C. and S.T. members in the Zilla Parishad
or Panchayat Samiti areas. On the contrary, Sections 12(2)(b) and
Section 58(1B)(b) which concerns quantum of reserved seats,
provides that the seats to be reserved for the persons belonging to
S. C. and S.T. in a Zilla Parishad or Panchayat Samiti area shall
bear as nearly as may be, the same proportion of the total number
of seats to be filled by direct elections in that Zilla Parishad or
Panchayat Samiti as the population of S.C. or S.T. in that Zilla
Parishad or Panchayat Samiti area bears to the total population of
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that area.
20] Thus, population based proportionate representation is not
only the accepted but the prescribed norm. This is virtually
reiterated in Rules 3 and 7 of the 1996 Rules. The Explanation to
Rules 3 and 7 makes express, what possibly was implicit in the
phrase “ as nearly as may be ' employed in Sections 12(2)(b) and
58(1B)(b) of the said Act. In the context of determination of
quantum of reservation, the Explanation merely provides that
fraction of one half or more of a seat shall be counted as one and
conversely fraction of less than one half shall be ignored. In our
opinion, neither the Rules 3 and 7 nor the Explanation thereto travel
beyond or abrogate or cut down the scope and import of Section
12(2) or Section 58(1B) of the said Act. The Rules together with the
Explanation merely prescribe the manner of determination of
reserved seats, which manner is entirely consistent with the
provisions contained in the parent Act. The challenge based upon
substantive ultra vires, accordingly fails and deserves rejection.
21] The second challenge based upon arbitrariness and
therefore unconstitutionality also does not commend to us. As
observed earlier all that the Explanation does, is to give effect to the
phrase ' as nearly as may be ' employed in Sections 12(2)(b) and
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58(1B)(b) of the said Act. Further, the said two Sections are
premised upon the principle of population based proportionate
representation. In order that ambiguities in interpretation are
reduced, if not wholly wiped out, if the State Government in exercise
of its rule making power provides an Explanation that fraction of
one half or a more of a seat shall be counted as one and fraction of
less than one half ignored, we can detect no arbitrariness or
unconstitutionality in such an approach. The principle of population
based proportionate representation is discernible in Article 243D of
the Constitution of India upon which the provisions contained in
Sections 12(2) and Section 58(1B) of the said Act are premised.
Article 243D(1) of the Constitution of India reads thus :
“243D. Reservation of seats .- (1) Seats shall be
reserved for -
(a) the Scheduled Castes; and
(b) the Scheduled Tribes,
in every Panchayat and the number of seats so
reserved shall bear, as nearly as may be, the same
proportion to the total number of seats to be filled by
direct election in that Panchayat as the population of
the Scheduled Castes in that Panchayat area or of
the Scheduled Tribes in that Panchayat area bears to
the total population of that area and such seats may
be allotted by rotation to different constituencies in a
Panchayat.”
22] The very same principle of population based proportionate
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representation is discernible in Article 243T (concerning
Municipalities), Article 330 (concerning House of People) and Article
332 (concerning Legislative Assemblies of State) of the
Constitution of India. In all these Articles it is provided that seats
shall be reserved for S.C. and S.T. and the number of seats
reserved shall bear, ' as nearly as may be ', the same proportion to
the total number of seats in the Municipality, House of People or
Legislative Assembly of the State as the case may be, as the
population of S.C. and S.T. in the municipal area or State as the
case may be, in respect of which seats are so reserved, bears to
the total population of the Municipal area or State, as the case may
be. In a situation where departure was intended, as for example in
the case of Anglo Indian Community, specific provisions have been
made making express such intent.
23] The provisions contained in Sections 12(2) and 58(1B) of the
said Act are entirely consistent with the prescribed norm of
population based proportionate representation. The same is the
position with Rules 3 and 7 read with the Explanations thereto in
the 1996 Rules. If the population of S.C. or S.T. in a given area is
so minuscule, that upon applying the norms prescribed, the fraction
is less than one half of a seat, then surely the Rules can provide
that such fraction be ignored. Similarly, if the fraction is one half or
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even marginally more than one half, then the seat shall be counted
as one. Such a Rule or any Explanation appended to the Rule
neither travels beyond the provisions in the parent Act, nor can the
same be stigmatized as being arbitrary, unconstitutional, null and
void.
24] In the case of Anand Singh Kunwar & Ors. vs. Election
1
Commission of India the Election Commission of India, the issue
concerned determination of reserved seats to the Legislative
Assembly of Uttaranchal. The census data indicated the population
of Scheduled Tribes in the State as being 3% of the total population.
The total number of seats in the Legislative Assemble were 70. By
reference to Article 332(3) of the Constitution of India, the number of
seats, as nearly as may be , had to be to the extent of 3% of 70
seats. This figure came to 2.1 which was nearly to 2 seats than to 3
seats. However, the Election Commission went on to reserve 3
seats for the members of the Scheduled Tribes and the issue before
the Supreme Court was whether reservation of 3 seats instead of 2
was contrary to the provisions of Article 332(3) of the constitution of
India.
25] During pendency of the petition however, the Election
Commission upon realising its mistake reduced the number of
1 (2007) 7 SCC 234
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reserved seats for the members of S.T. from 3 to 2 and issued an
appropriate Notification in that regard. Despite the challenge / issue
having become academic, the Supreme Court at paragraph 5,
observed thus :
“5. Though now the issue is purely academic
because the Election Commission having realised its
mistake has reduced the number of seats of
Scheduled Tribes from three (3) to two (2) and the
notification to this effect has already been issued but
in order to justify the order dated 5-11-2001 the
Election Commission has made certain observations
which need not be repeated again. It should be
made clear that the mandate of Article 332(3) of the
Constitution of India should always be kept in mind.
Article 332(3) mandates that the reservation must be
made in proportion to the population of the
Scheduled Castes and Scheduled Tribes of the
State. This should be the paramount consideration of
the Election Commission and not any other
consideration. We need not make any observation
but the consideration for increasing the seats of
Scheduled Tribes from two (2) to three (3) was not at
all warranted as it is in violation of Article 332(3) of
the Constitution of India. The mandate of the
Constitution is supreme and the Election
Commission has no scope to go beyond the
Constitution. Therefore, we hope and trust that when
any notification is issued, the Election Commission
shall confine itself to the mandate of the provisions of
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the Constitution of India and will not be swayed by
any other consideration.” (Emphasis supplied).
26] Thus, it is clear that in matters of reservation of these types
governed by provisions like Article 332 of the Constitution of India
reservations have to be based upon the principle of population
based proportionate representation. The phrase ' as nearly as may
be ' employed in Articles 243D, 243T, 330 and 332 by itself supports
the construction commended by Explanation to Rules 3 and 7 of the
1996 Rules. The expression ' as nearly as may be ' significantly finds
place in Sections 12(2)(b) and Section 58(1B)(b) of the said Act as
well. The Explanation to Rules 3 and 7, in the circumstances assists
in the implementation of the principle of population based
proportionate representation, which as observed by the Supreme
Court has to be 'paramount consideration' of the Election
Commission and not any other consideration. This is yet another
reason to reject the challenge based upon arbitrariness and
consequently, unconstitutionality.
27] In conclusion, we see no merit in either of the contentions of
the Petitioner. The petition is accordingly rejected. Rule is
discharged. However, there shall be no order as to costs.
(M. S. SONAK, J.) (A. S. OKA, J.)
Chandka
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