O R D E R (Oral)

(24.02.2021)

Per: Mohammad Rafiq, Chief Justice

This writ petition has been filed by the petitioner praying for grant of following reliefs:

“1) Summon the entire relevant record from the possession of the respondents for kind perusal of this Hon’ble Court.

2) This Hon’ble Court be pleased to set-aside the impugned order dated 28.11.2020 (Annexure P-1) passed by the respondent No.1.

3) This Hon’ble Court be pleased to set-aside the impugned

Gazette Notification dated 10.12.2020 (Annexure P-2)

passed by the respondent No.1.

4) This Hon’ble court be pleased to set-aside the impugned

Gazette Notification dated 10.12.2020 (Annexure P-10)

passed by the respondent No.1.

5) Further, this Hon’ble Court be pleased to direct the respondents to recategorize/undertake the process to declare the reservation seats.

6) Any other relief which this Hon’ble court deems fit and proper may kindly be granted.”

2. Shri Prabhakar Galaw, learned counsel for the petitioner argued that the petitioner belongs to Other Backward Classes (OBC) and is a resident of Ram Manohar Lohiya Ward. He is desirous of contesting election for the post of Councillor, Municipal Council, Dhanpuri, District Shahdol from that Ward, which is mentioned at Sl. No. 17 in the New Ward List. Learned counsel for the petitioner has placed reliance on Rule 3 of the Madhya Pradesh Municipalities (Reservation of Wards for Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women) Rules, 1994 (hereinafter referred to as the “Rules of 1994”) and contended that Section 29 of the Madhya Pradesh Municipalities Act, 1961 (for short “the Act of 1961”) talks about determination of number and extent of Wards and conduct of election. Section 29-A of the Act of 1961 provides for reservation of seats and clearly states that the seat in the Municipal Council shall be reserved for Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women but ratio of such reservation in no event can exceed 50% of the total number of Wards. The learned counsel for the petitioner in support of his arguments, has relied on the judgments of the Supreme K. Krishna Murthy (Dr.) and Others Vs. Union of India and another; (2010) 7 SCC 202 and Others Vs. Rakesh Kumar and others; (2010) 4 SCC 50 argued that as per the law laid down by the Apex Court in these cases the reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes can, in no case, exceed more than 50% of the total seats available. Referring to the Notification dated 10.12.2020

(Annexure P-2), the learned counsel for the petitioner submitted that out of total 28 Wards in the Municipal Council Dhanpuri, 3 have been reserved for Scheduled Castes, 5 for Scheduled Tribes and 7 for Other Backward Classes. Thus total 15 Wards have been reserved, which is exceeding 50% i.e. 14 number of Wards.

3. Learned counsel for the petitioner vehemently argued that issuance of the impugned notification dated 10.12.2020 (Annexure P- 2) is contrary to law, because as per Section 29-A of the Act of 1961 the reserved seats cannot exceed more than 50%. He also invited attention of this Court towards the proceedings of the process of reservation carried out by the Collector and the minutes of meeting dated 26.11.2020 (Annexure P-7).

4. Shri Pushpendra Yadav, learned Additional Advocate General for the respondents/State contested the aforesaid contentions and submitted that the instant writ petition is liable to be dismissed, because though the petitioner has assailed the validity of notification dated 10.12.2020, but he has not challenged the vires of either Section 29-A of the Act of 1961 or Rule 3 of the Rules of 1994. He submitted that the respondents have carried out the mandate of Section 29-A of the Act of 1961 and Rule 3 of the Rules of 1994 and have acted strictly in conformity therewith. It is contended that the communication dated 29.08.2019 (Annexure P-6) was issued earlier than issuance of the Notification under Rule 7 of the Rules of 1