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2014 Supreme(Bom) 28
High Court of Judicature at Bombay
A.S. OKA & M.S. SONAK, JJ.
Shailaja Sunil Kolpe
Versus
State of Maharashtra & Others
Writ Petition No. 2327 of 2012
Decided On: 08-01-2014
For the Petitioner:S.B. Deshmukh, Advocate.
For the Respondent:R1, R2, Mrs M.P. Thakur, A.G.P, R3, S.B. Shetye, Advocate.
Headnote:Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 - Section 12 - Rules, 1996, Rule 3 - Explanation - Challenge against Explanation to Rule 3. - Explanation to Rule 3 by providing that, ’fraction of less than one half of seats be ignored" merely prescribing manner of determination of reserved seats, is not arbitrary. - Explanation does give effect to the phrase ’as nearly as may be’ employed in Sections 12 (2) (b) and 58 (1-B)(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, Court can detect no arbitrariness or unconstitutionality in such an approach. The principle of population based proportionate representation is discernible in Article 243-D of the Constitution of India upon which the provisions contained in Sections 12(2) and Section 58(1-B) of the said Act are premised.
Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 - Section 12 - Rules, 1996, Rule 3 - Explanation - Challenge to Explanation to Rule 3. - Since plea that Explanation providing that fraction of less than one half of seats shall be ignored, result in cutting down scope of Section 12 of Act, is untenable hence Explanation cannot be said to be ultra vires Parent Act. - There is no appreciable difference between the provisions contained in Section 12 (2) (a) and Section 58 (1-B) (a) of the Act, except that the former concerns elections to the Zilla Parishad and the latter concern selections to Panchayat Samitis. Mr. Deshmukh, 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 (1-B) (a) cannot be whittled down or virtually abrogated by recourse to ’explanation’ appended to Rules 3 and 7 of the 1996 Rules. To the extent such ’explanation’ whittles down and abrogates the substantive provisions as contained in Sections 12(2)(a) and 58(1-B)(a), ’explanation’ is ultra vires, inoperable, null and void .
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(1-B)(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 (1-B) 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.
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 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 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.
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 S
