2021 Supreme(SC) 124

SUPREME COURT OF INDIA
A.M. KHANWILKAR, INDU MALHOTRA, AJAY RASTOGI, JJ.
VIKAS KISHANRAO GAWALI - PETITIONER
VERSUS
STATE OF MAHARASHTRA & ORS. - RESPONDENTS
WRIT PETITION (CIVIL) NO. 743, 980, 981, 1408 OF 2019
Decided On : 04-03-2021

IMPORTANT POINTS
(1) Reservation for OBCs is only a “statutory” dispensation to be provided by State legislations unlike “constitutional” reservation regarding SCs/STs which is linked to proportion of population.
(2) State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in local bodies across State that too without a proper enquiry into nature and implications of backwardness by an independent Commission about imperativeness of such reservation. It cannot be a static arrangement.

Headnote:

(A) Reservation – Local Bodies – Reservation for OBCs is only a “statutory” dispensation to be provided by State legislations unlike “constitutional” reservation regarding SCs/STs which is linked to proportion of population – As regards State legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50 per cent of seats in concerned local bodies – In case, constitutional reservation provided for SCs and STs were to consume entire 50 per cent of seats in concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, question of providing further reservation to OBCs would not arise at all – Quantum of reservation for OBCs ought to be local body specific and be so provisioned to ensure that it does not exceed quantitative limitation of 50 per cent (aggregate) of vertical reservation of seats for SCs/STs/OBCs taken together – State Authorities are obliged to fulfil other preconditions before reserving seats for OBCs in local bodies – State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in local bodies across State that too without a proper enquiry into nature and implications of backwardness by an independent Commission about imperativeness of such reservation – It cannot be a static arrangement – It must be reviewed from time to time so as not to violate principle of overbreadth of such reservation (which in itself is a relative concept and is dynamic) – Besides, it must be confined only to the extent it is proportionate and within quantitative limitation as is predicated by Constitution Bench of this Court. (Paras 7 and 8)

(B) Maharashtra Zila Parishads and Panchayat Samitis Act, 1961 – Section 12(2)(c) – Constitution of India – Articles 243D and 243T and Articles 14 and 16 – Vires of Section 12(2)(c ) on touchstone of Articles 243D and 243T of Constitution – Reservation in favour of OBCs in concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of total seats reserved in favour of SCs/STs/OBCs taken together – Expression “shall be” preceding 27 per cent occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by Constitution Bench of this Court – On such interpretation, Section 12(2)(c) can be saved and at the same time, law declared by Constitution Bench of this Court can be effectuated in its letter and spirit – Section 12(2)(c) of 1961 Act is an enabling provision and needs to be read down to mean that it may be invoked only upon complying with triple conditions as specified by Constitution Bench of this Court, before notifying seats as reserved for OBC category in concerned local bodies – Election results of OBC candidates which had been made subject to outcome of these writ petitions including so notified in concerned election programme issued by State Election Commission, are declared as non est in law and vacancy of seat(s) caused on account of this declaration be forthwith filled up by State Election Commission with general/open candidate(s) for remainder term of concerned local bodies, by issuing notification in that regard – As a consequence of this declaration and direction, all acts done and decisions taken by concerned local bodies due to participation of members (OBC candidates) who have vacated seats in terms of this decision, shall not be affected in any manner – For, they be deemed to have vacated their seat upon pronouncement of this judgment, prospectively – This direction is being issued in exercise of plenary power under Article 142 of Constitution of India to do complete justice – Challenge to validity of Section 12(2)(c) of 1961 Act is negatived. (Paras 14, 25, 26 and 28)

Facts of the case:

These writ petitions under Article 32 of the Constitution of India seek a declaration that Section 12(2)(c) of the Maharashtra Zila Parishads and Panchayat Samitis Act, 1961, is ultra vires provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution of India. In addition, the validity of notifications dated 27.7.2018 and 14.2.2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara have been questioned and it is prayed that the same be quashed and set aside.

Findings of Court:

Election results of OBC candidates which had been made subject to the outcome of these writ petitions including so notified in the concerned election programme issued by the State Election Commission, are declared as non est in law and the vacancy of seat(s) caused on account of this declaration be forthwith filled up by the State Election Commission with general/open candidate(s) for the remainder term of the concerned local bodies, by issuing notification in that regard.

Result : Writ Petitions Partly allowed.