Vikas Kishanrao Gawali vs The State Of Maharashtra

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 980 OF 2019

VIKAS KISHANRAO GAWALI …PETITIONER

VERSUS

STATE OF MAHARASHTRA & ORS. …RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 981 OF 2019

WRIT PETITION (CIVIL) NO. 1408 OF 2019

AND

WRIT PETITION (CIVIL) NO. 743 OF 2020

JUDGMENT

A.M. KHANWILKAR, J.

1. These writ petitions under Article 32 of the Constitution of

India seek a declaration that Section 12(2)(c) of the Maharashtra Signature Not Verified Digitally signed by DEEPAK SINGH 15:13:12 IST Reason: Zilla Parishads and Panchayat Samitis Act, 1961 1, is ultra vires the Date: 2021.03.04

1 for short, “the 1961 Act” 2

provisions of Articles 243­D and 243­T including Articles 14 and

16 of the Constitution of India. In addition, the validity of the

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. A district wise chart has been presented to illustrate the

excess reserved percentage and seats (more than aggregate 50 per

cent of total seats), in some of the districts, which reads thus:

“District: Washim

Particulars Total General Reserved Exceed 50 per cent Seats SC ST OBC Percentage Seats Zilla Parishad 52 23 11 04 14 5.76 % 3 Gram 490 219 100 39 132 5.30 % 26 Panchayat

District: Bhandara

Particulars Total General Reserved Exceed 50 per cent Seats SC ST OBC Percentage Seats Zilla Parishad 52 25 09 04 14 1.92 % 1 Gram 541 261 91 43 146 1.75 % 9 Panchayat

District: Akola Particulars Total General Reserved Exceed 50 per cent Seats SC ST OBC Percentage Seats Zilla Parishad 53 22 12 05 14 8.49 % 4 3

Panchayat 106 44 25 09 28 8.49 % 9 Samiti Gram 539 226 125 42 146 8.07 % 43 Panchayat District: Nagpur Particulars Total General Reserved Exceed 50 per cent Seats SC ST OBC Percentage Seats Zilla Parishad 58 25 10 07 16 6.89 % 4 Panchayat 116 51 19 15 31 6.03 % 7 Samiti Gram 772 330 137 97 208 7.25 % 56 Panchayat

District: Gondiya Particulars Total General Reserved Exceed 50 per cent Seats SC ST OBC Percentage Seats Zilla Parishad 53 23 06 10 14 6.60 % 3 Panchayat 106 45 12 19 30 7.54 % 8 Samiti Gram 544 232 66 99 147 7.35 % 40” Panchayat

(emphasis supplied)

2. The conundrum in these matters revolves around the

exposition of the Constitution Bench of this Court in K. Krishna

Murthy (Dr.) & Ors. v. Union of India & Anr. 2. Relying on the

dictum in the said decision, the petitioners would urge that it is no

more open to the respondents to reserve more than 50 per cent

(aggregate) seats in the concerned local bodies by providing

reservation for Scheduled Castes3/Scheduled Tribes4/Other 2 (2010) 7 SCC 202 3 for short, “the SCs” 4 for short, “the STs” 4

Backward Classes5. Whereas, the respondent­State would urge

that the stated decision recognises that it is permissible to reserve

seats for OBCs to the extent permissible in the 1961 Act. Further,

in exceptional situation, the reservation for SCs/STs/OBCs in the

concerned local bodies (Zilla Parishads and Panchayat Samitis)

could exceed even 50 per cent of the total seats. This is the central

issue to be dealt with in the present writ petitions.

3. The provision in the form of Section 12 of the 1961 Act

enables the respondents to reserve 27 per cent of seats in the

concerned Zilla Parishads and Panchayat Samitis. Section 12 of

the 1961 Act is reproduced hereunder:

“12. Division of District into electoral division.—(1) The State Election Commission shall, for the purposes of election of Councillors divide every District; into electoral divisions (the territorial extent of any such division not being outside the limits of the same Block), each returning one Councillor, and there shall be a separate election for each electoral division:

Provided that, such electoral division shall be divided in such a manner that the ratio between the population of each electoral division and the total number of Councillors to be elected for the Zilla Parishad shall, so far as practicable, be the same throughout the Zilla Parishad area:

Provided further that, while distributing such electoral divisions among the Panchayat Samitis, not less than two electoral divisions shall be allotted to each Panchayat Samiti.

5 for short, “the OBCs” 5

(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 Parsishad 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 provisions of clause (b):

Provided also that one­half 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:

(c) the seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 per cent. of the total number of seats to be filled in by election in a Zilla Parishad 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 persons belonging to the Backward Class of Citizens shall be 27 per cent. of the seats remaining (if any), after reservation of the seats for the Scheduled Tribes and the Scheduled Castes :

6 Provided further that, the reservation for the persons belonging to the Backward Class of Citizens in a Zilla Parishad falling only partially in the Scheduled Areas shall be in accordance with the provisions of clause (c) :

Provided also that one­half of the total number of seats so reserved shall be reserved for women belonging to the category of Backward Class of Citizens:

(d) one­half (including the number of seats reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the category of Backward Class of Citizens) of the total number of seats to be filled in by direct election in a Zilla Parishad shall be reserved for women and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad.

(3) The reservation of seats (other than the reservation for women) under sub­section (2) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution of India.” (emphasis supplied)

4. We may straight away advert to the decision in K. Krishna

Murthy (supra). In paragraph 9 of the decision, this Court

formulated two questions for its consideration, the same read thus:

“9. In light of the submissions that have been paraphrased in the subsequent paragraphs, the contentious issues in this case can be framed in the following manner:

(i) Whether Article 243­D(6) and Article 243­T(6) are constitutionally valid since they enable reservations in favour of backward classes for the purpose of occupying seats and chairperson positions in panchayats and municipalities respectively?

7 (ii) Whether Article 243­D(4) and Article 243­T(4) are constitutionally valid since they enable the reservation of chairperson positions in panchayats and municipalities respectively?” (emphasis supplied)

5. As regards the discussion on the question of validity of

reservation in favour of backward classes, the Court proceeded to

examine the same in paragraphs 58 to 67 of the reported decision.

The essence of the view expressed by the Constitution Bench on

the said question is that Articles 243­D(6) and 243­T(6) of the

Constitution of India are merely enabling provisions and it would

be improper to strike them down as violative of the equality clause.

At the same time, the Court noted that these provisions did not

provide guidance on how to identify the backward classes and

neither do they specify any principle for the quantum of such

reservations. Instead, discretion has been conferred on the State

legislatures to design and confer reservation benefits in favour of

backward classes. While dealing with the provisions pertaining to

reservations in favour of backward classes concerning the States of

Karnataka and Uttar Pradesh wherein the quantum of reservation

was 33 per cent and 27 per cent respectively, the Court noted that

objections can be raised even with regard to similar provisions of 8

some other State legislations. The real concern was about

overbreadth in the State legislations and while dealing with that

aspect in paragraphs 60 to 63, the Court noted thus:

“60. There is no doubt in our minds that excessive and disproportionate reservations provided by the State legislations can indeed be the subject­matter of specific challenges before the courts. However, the same does not justify the striking down of Articles 243­D(6) and 243­T(6) which are constitutional provisions that enable reservations in favour of backward classes in the first place. As far as the challenge against the various State legislations is concerned, we were not provided with adequate materials or argumentation that could help us to make a decision about the same. The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness.

61. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against overbreadth. In respect of the objections against the Karnataka Panchayat Raj Act, 1993, all that we can refer to is the Chinnappa Reddy Commission Report (1990) which reflects the position as it existed twenty years ago. In the absence of updated empirical data, it is well­ nigh impossible for the courts to decide whether the reservations in favour of OBC groups are proportionate or not.

62. Similarly, in the case of the State of Uttar Pradesh, the claims about the extent of the OBC population are based on the 1991 census. Reluctant as we are to leave these questions open, it goes without saying that the petitioners are at liberty to raise specific challenges against the State legislations if they can point out 9

flaws in the identification of backward classes with the help of updated empirical data.

63. As noted earlier, social and economic backwardness does not necessarily coincide with political backwardness. In this respect, the State Governments are well advised to reconfigure their reservation policies, wherein the beneficiaries under Articles 243­D(6) and 243­T(6) need not necessarily be coterminous with the Socially and Educationally Backward Classes (SEBCs) [for the purpose of Article 15(4)] or even the backward classes that are underrepresented in government jobs [for the purpose of Article 16(4)]. It would be safe to say that not all of the groups which have been given reservation benefits in the domain of education and employment need reservations in the sphere of local self­government. This is because the barriers to political participation are not of the same character as barriers that limit access to education and employment. This calls for some fresh thinking and policy­making with regard to reservations in local self­government.” (emphasis supplied)

6. Again, in paragraph 64, the Court noted about the absence of

explicit constitutional guidance as to the quantum of reservation in

favour of backward classes in local self­government. For that, the

thumb rule is that of proportionate reservation. The Court

hastened to add a word of caution, which in, essence, is the

declaration of the legal position that the upper ceiling of 50 per

cent (quantitative limitation) with respect to vertical reservations in

favour of SCs/STs/OBCs taken together should not be breached.

10 This has been made amply clear and restated even in paragraph 67

of the reported decision, which reads thus:

“67. In the recent decision reported as Union of India v. Rakesh Kumar [(2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961 : (2010) 1 Scale 281] this Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in panchayats located in the Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.” (emphasis supplied)

On that analysis, the Court in conclusion noted as follows:

“Conclusion

82. In view of the above, our conclusions are:

(i) The nature and purpose of reservations in the context of local self­government is considerably different from that of higher education and public employment. In this sense, Article 243­D and Article 243­T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self­government.

Even when made, they need not be for a period corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.

11

(ii) Article 243­D(6) and Article 243­T(6) are constitutionally valid since they are in the nature of provisions which merely enable the State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State legislations.

(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State legislations since there is no contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243­D(6) and 243­T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of “backward classes” under Article 243­D(6) and Article 243­T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self­ government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.

(v) The reservation of chairperson posts in the manner contemplated by Articles 243­D(4) and 243­ T(4) is constitutionally valid. These chairperson posts 12

cannot be equated with solitary posts in the context of public employment.” (emphasis supplied)

7. On a fair reading of the exposition in the reported decision,

what follows is that the reservation for OBCs is only a “statutory”

dispensation to be provided by the State legislations unlike the

“constitutional” reservation regarding SCs/STs which is linked to

the proportion of population. As regards the State legislations

providing for reservation of seats in respect of OBCs, it must

ensure that in no case the aggregate vertical reservation in respect

of SCs/STs/OBCs taken together should exceed 50 per cent of the

seats in the concerned local bodies. In case, constitutional

reservation provided for SCs and STs were to consume the entire

50 per cent of seats in the concerned local bodies and in some

cases in scheduled area even beyond 50 per cent, in respect of

such local bodies, the question of providing further reservation to

OBCs would not arise at all. To put it differently, the quantum of

reservation for OBCs ought to be local body specific and be so

provisioned to ensure that it does not exceed the quantitative

limitation of 50 per cent (aggregate) of vertical reservation of seats

for SCs/STs/OBCs taken together.

13

8. Besides this inviolable quantitative limitation, the State

Authorities are obliged to fulfil other pre­conditions before

reserving seats for OBCs in the local bodies. The foremost

requirement is to collate adequate materials or documents that

could help in identification of backward classes for the purpose of

reservation by conducting a contemporaneous rigorous empirical

inquiry into the nature and implications of backwardness in the

concerned local bodies through an independent dedicated

Commission established for that purpose. Thus, the State

legislations cannot simply provide uniform and rigid quantum of

reservation of seats for OBCs in the local bodies across the State

that too without a proper enquiry into the nature and implications

of backwardness by an independent Commission about the

imperativeness of such reservation. Further, it cannot be a static

arrangement. It must be reviewed from time to time so as not to

violate the 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 the

quantitative limitation as is predicated by the Constitution Bench

of this Court.

14

9. Notably, the Constitution Bench adverted to the fact that

provisions of most of the State legislations may require a relook,

but left the question regarding validity thereof open with liberty to

raise specific challenges thereto by pointing out flaws in the

identification of the backward classes in reference to the empirical

data. Further, the Constitution Bench expressed a sanguine hope

that the concerned States ought to take a fresh look at policy

making with regard to reservations in local self­government in light

of the said decision, whilst ensuring that such a policy adheres to

the upper ceiling including by modifying their legislations — so as

to reduce the quantum of the existing quotas in favour of OBCs

and make it realistic and measurable on objective parameters.

10. Despite this declaration of law and general observations cum

directions issued to all the States on the subject matter, the

legislature of the State of Maharashtra did not take a relook at the

existing provisions which fell foul of the law declared by the

Constitution Bench of this Court. As a matter of fact, couple of

writ petitions6 came to be filed in the Bombay High Court in which

solemn assurance was given on behalf of the State of Maharashtra

6 W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018 15

that necessary corrective measures in light of the decision of this

Court, will be taken in right earnest. The situation, however,

remained unchanged.

11. As a matter of fact, no material is forthcoming as to on what

basis the quantum of reservation for OBCs was fixed at 27 per

cent, when it was inserted by way of amendment in 1994. Indeed,

when the amendment was effected in 1994, there was no guideline

in existence regarding the modality of fixing the limits of reserved

seats for OBCs as noted in the decision of the Constitution Bench

in K. Krishna Murthy (supra). After that decision, however, it was

imperative for the State to set up a dedicated Commission to

conduct contemporaneous rigorous empirical inquiry into the

nature and implications of backwardness and on the basis of

recommendations of that Commission take follow up steps

including to amend the existing statutory dispensation, such as to

amend Section 12(2)(c) of the 1961 Act. There is nothing on record

that such a dedicated Commission had been set up until now. On

the other hand, the stand taken by the State Government on

affidavit, before this Court, would reveal that requisite information

for undertaking such empirical inquiry has not been made 16

available to it by the Union of India. In light of that stand of the

State Government, it is unfathomable as to how the respondents

can justify the notifications issued by the State Election

Commission to reserve seats for OBCs in the concerned local

bodies in respect of which elections have been held in the year

December 2019/January 2020, which notifications have been

challenged by way of present writ petitions. This Court had

allowed the elections to proceed subject to the outcome of the

present writ petitions.

12. Be that as it may, it is indisputable that the triple

test/conditions required to be complied by the State before

reserving seats in the local bodies for OBCs has not been done so

far. To wit, (1) to set up a dedicated Commission to conduct

contemporaneous rigorous empirical inquiry into the nature and

implications of the backwardness qua local bodies, within the

State; (2) to specify the proportion of reservation required to be

provisioned local body wise in light of recommendations of the

Commission, so as not to fall foul of overbreadth; and (3) in any

case such reservation shall not exceed aggregate of 50 per cent of

the total seats reserved in favour of SCs/STs/OBCs taken together. 17

In a given local body, the space for providing such reservation in

favour of OBCs may be available at the time of issuing election

programme (notifications). However, that could be notified only

upon fulfilling the aforementioned pre­conditions. Admittedly, the

first step of establishing dedicated Commission to undertake

rigorous empirical inquiry itself remains a mirage. To put it

differently, it will not be open to respondents to justify the

reservation for OBCs without fulfilling the triple test, referred to

above.

13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,

the plain language does give an impression that uniform and rigid

quantum of 27 per cent of the total seats across the State need to

be set apart by way of reservation in favour of OBCs. In light of the

dictum of the Constitution Bench, such a rigid provision cannot be

sustained much less having uniform application to all the local

bodies within the State. Instead, contemporaneous empirical

inquiry must be undertaken to identify the quantum qua local body

or local body specific.

14. In our opinion, the provision in the form of Section 12(2)(c)

can be saved by reading it down, to mean that reservation in favour 18

of OBCs in the concerned local bodies may be notified to the

extent, that it does not exceed 50 per cent of the total seats

reserved in favour of SCs/STs/OBCs taken together. In other

words, the 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 the

outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs

taken together, as enunciated by the Constitution Bench of this

Court. On such interpretation, Section 12(2)(c) can be saved and

at the same time, the law declared by the Constitution Bench of

this Court can be effectuated in its letter and spirit.

15. The argument of the respondent­State that the reservations in

favour of OBCs must be linked to population, is very wide and

tenuous. That plea if countenanced, will be in the teeth of the

dictum of the Constitution Bench of this Court wherein it has been

noted and rejected. The Court has expounded about the

distinction in the matter of reservation in favour of SCs and STs on

the one hand, which is a “constitutional” reservation linked to

population unlike in the case of OBCs which is a “statutory”

dispensation. Therefore, the latter reservation for OBCs must be 19

proportionate in the context of nature and implications of

backwardness and in any case, is permissible only to the extent it

does not exceed the aggregate of 50 per cent of the total seats in

the local bodies reserved for SCs/STs/OBCs taken together.

16. Indeed, this Court had allowed the State Election Commission

to conduct elections on the basis of old dispensation in terms of

orders dated 28.08.2019, 07.11.2019 and 13.12.2019, by

recording prima facie view as noted in the order dated 18.12.2019.

However, it was made amply clear that the elections in respect of

five districts (Nagpur, Washim, Akola, Dhule and Nandurbar) were

allowed to proceed subject to the outcome of present writ petition(s)

questioning the validity of Section 12(2)(c) of the 1961 Act. Thus

understood, the respondents cannot take benefit of the prima facie

observations to repel the challenge to the old dispensation being

continued despite the decision of the Constitution Bench of this

Court and more particularly, to the notifications reserving seats for

OBC candidates exceeding the quantitative limitation of aggregate

50 per cent of total seats in the local bodies concerned.

17. In light of the finding recorded hitherto (that no inquiry much

less contemporaneous rigorous empirical inquiry into the nature 20

and implications of backwardness by a dedicate Commission

established by the State for the purpose has been undertaken), it is

not open to the State to fall back on Section 12(2)(c) as enacted in

1994. That provision, as aforementioned, is an enabling provision

and would become functional and operational only upon fulfilling

triple test as specified by the Constitution Bench of this Court.

That is the sine qua non or the quintessence for exercise of power

to reserve seats for OBCs in the local bodies. Indeed, the exercise

of power to reserve seats for OBCs springs from Section 12(2)(c) of

the 1961 Act, but that is hedged by conditions and limitations

specified by the Constitution Bench of this Court and would not get

ignited until such time.

18. Thus understood, the impugned notifications issued by the

State Election Commission reserving seats for OBCs in the

concerned local bodies, suffer from the vice of foundational

jurisdictional error. The impugned notification(s) to the extent it

provides for reservation for OBCs in the concerned local bodies, is,

therefore, void and without authority of law.

19. A priori, the elections conducted by the State Election

Commission on the basis of such notifications concerning reserved 21

OBC seats alone are vitiated and must be regarded as non est in

the eyes of law from its inception in the wake of declaration of law

in that regard by the Constitution Bench of this Court. The fact

that it will impact large number of seats throughout the five

districts or elsewhere where such elections are conducted in

2019/2020, would make no difference. For, such reservation was

not permissible in law unless the essential steps, as propounded

by the Constitution Bench of this Court, had been taken before

issuing the election notifications, that too only to the extent of

quantitative limitation. This position would apply in full measure,

to all elections conducted in respect of reserved OBC seats by the

State Election Commission duly notifying that the same will be

subject to the outcome of these writ petitions. The State Election

Commission must proceed to take follow up steps and notify

elections for seats vacated in terms of this decision for being filled

up by open/general category candidates for the remainder tenure

of the concerned Gram Panchayats and Samitis. We are inclined to

take this view as it is not possible to identify which of the reserved

seat for OBCs in the concerned local body would fall foul of the law 22

declared by the Constitution Bench of this Court, amongst the total

seats reserved for OBCs.

20. The respondent­State through learned counsel had urged that

this Court ought not to entertain the present writ petitions as writ

petitions7 were still pending before the High Court for the same

relief. We are not impressed by this hyper technical objection. It is

true that petitioners in two writ petitions had first approached the

High Court, but still the issue under consideration needs to be

answered at the instance of petitioners in other two writ petitions

praying for the same reliefs. Indeed, it would have been possible

for us to request the High Court to decide the issue in the first

instance but as the matter essentially pertains to the width of

declaration and directions given by the Constitution Bench of this

Court in K. Krishna Murthy (supra) and its implementation in its

letter and spirit, we deem it appropriate to answer the issue under

consideration.

21. It has been faintly suggested by the respondent­State in its

written submission that the writ petition may be set down for

further hearing. However, we fail to fathom why such a plea has 7 W.P. (Civil) No. 2756 of 2019; W.P. (Civil) No. 2893 of 2019 and W.P. (Civil) No. 9159 of 2020 23

been put forth especially when the State has already filed a

consolidated affidavit in this Court, apart from the comprehensive

written submissions filed after closure of oral arguments. In our

opinion, no fruitful purpose will be served by showing that

indulgence. For, the matter is capable of and is being disposed of

on the basis of undisputed fact that before instructing the State

Election Commission to reserve seats for OBC groups in the local

bodies, no attempt was made by the State Government to set up a

dedicated Commission to conduct contemporaneous rigorous

empirical inquiry into the nature and implications of

backwardness, and then to act upon the report of the Commission.

That fact is reinforced from the consolidated affidavit filed by the

respondent­State in SLP (Civil) No. 33904 of 2017, which was the

lead matter until it was disposed of on 17.02.2021, after analogous

hearing with the present writ petitions. That consolidated affidavit

was filed pursuant to the directions given by this Court vide order

dated 19.01.2021, which

reads thus:

24

“Heard learned counsel for the parties. We direct the Respondent­State to file a consolidated affidavit dealing with the issues raised in each of these proceedings including in the form of interlocutory application(s) to be served on learned counsel appearing for the concerned petitioners/applicants within three weeks from today.

We clarify that the consolidated affidavit will be a common affidavit used in the concerned petitioners and application(s) as the case may be.

List on 11.02.2021.” (emphasis supplied)

Accordingly, the consolidated affidavit dated 04.02.2021 came to

be filed by the State duly sworn by the Deputy Commissioner

(Establishment), which reads thus:

“COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT

I, D.D. Shinde age 55 years, Occ. Service, presently working as Deputy Commissioner (Establishment) in the office of Divisional Commissioner, Nashik, Maharashtra, do hereby submit on solemn affirmation as under that:­

1. I am the authorized officer of the respondent in the present Special Leave Petition. I am also authorized to file Counter Affidavit on behalf of Respondent as such I am well conversant with the facts and circumstances of the case and hence I am competent and authorized to swear this Counter Affidavit on behalf of the Respondent.

2. I have gone through the contents of the present Special Leave Petition in reply thereto the answering Respondent seeks to file this Counter Affidavit in order to oppose the averments and contentions of the Special Leave Petition with liberty of this Hon’ble Court 25

to file a further Counter Affidavit as and when necessary and with the permission of this Hon’ble Court.

3. The State Government has filed affidavits dated 05.11.2019 and 13.03.2020, and I repeat and reiterate the contents of the same as if the same have been set out herein, in extenso. I say that I am filing this Affidavit in compliance of the directions of the Hon’ble Court in its order dated 19.01.2021, passed in the above Special Leave Petition.

4. I say that the elections were held to the Zilla Parishads of five districts in Maharashtra, namely Nagpur, Washim, Akola, Dhule and Nandurbar in December 2019/January 2020, pursuant to the orders passed by this Hon’ble Court. In all the aforesaid districts, the reservation exceeded 50%. It is the contention of the Petitioners that in all the aforesaid districts the reservation could not have exceeded 50% as it was the upper limit as set out in the judgments of Indra Sawhney vs. Union of India reported in (1992) 3 SCC 217 and the judgment of K. Krushnamurthy vs. Union of India reported in (2010) 7 SCC 202. The only issue that essentially remains for consideration of this Hon’ble Court, in all these matters is whether the reservation in all the aforesaid five districts could have exceeded 50%.

5. I repeat and reiterate that the elections held in December 2019/January 2020 have been held on the basis of the old dispensation, but for future elections, the State Government will have to provide category wise breakup of population and in particular regarding Backward Class Category (BCC), as the information can be provided only by the Central Government. It is therefore submitted that, I.A. No.188324/2019 be allowed and the Registrar General of India, Ministry of Home Affairs, Government of India and the Secretary, Ministry of Social Justice and Welfare be added as party respondents in the aforesaid Special Leave Petitions. It is further submitted that, I.A. No.188318/2019 be allowed and the Registrar General of India, Ministry of Home Affairs, Government of India 26

and the Secretary, Ministry of Social Justice and Welfare be directed to make available the data of Socio­Economic Census 2011, to the extent only relating to the caste of the citizens of Rural Maharashtra, to enable the Government of Maharashtra to calculate population belonging to castes that make a part of Backward Classes of Citizens (BCC) in Maharashtra.

6. I repeat and reiterate with regard to the decision of the Constitution Bench of this Hon’ble Court in K. Krishnamurthy (supra), and in particular paragraph no.83(iv) thereof, it is submitted with respect that, a reading of paragraphs no.59, 64, 66 and 67 thereof, create a doubt as to whether 50% vertical reservations referred to in paragraph no.82(iv) can be regarded as unalterable. A breakup of the figures in respect of the five districts (mentioned in the order dated 18.12.2019) show that if the direction given in paragraph no.82(iv) are to be strictly complied with, it may not be possible to give effect thereto, at least in respect of Dhule and Nandurbar districts which have high tribal population.

7. I submit that in the case of K. Krushna Murthy (Supra) the Hon’ble Constitution Bench of this Hon’ble Court lays down that the nature and purpose of reservations in the context of local self­government is considerably different from that of higher education and public employment. It further lays down that Article 243­D and Article 243­T form a distinct and independent constitutional basis for affirmative action and the principle that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) of the Constitution, cannot be readily applied in the context of local self­government.

8. I submit that in the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self­ government, the rule of thumb is that of ‘proportionate reservation’. Admittedly, reservations in excess of 50% do exist in some exceptional cases, when it comes to the domain of political representation, which is the 27

outcome of exceptional considerations in relation to these areas. Similarly, vertical reservations in excess of 50% are permissible in the composition of local self­ government institutions located in the Fifth Schedule Areas. I submit that in the judgment of Union of India v. Rakesh Kumar reported in (2010) 4 SCC 50, this Hon’ble Court has explained why it may be necessary to provide reservations in favour of the Scheduled Tribes that exceed 50% of the seats in local self­ governments located in the Scheduled Area.

9. With regard to the elections held in December 2019/January 2020, in Nandurbar district, 44 out of 56 seats were reserved for Scheduled Tribes (ST) category which was in keeping with the population ratio. This itself consumed 50% upper limit provided by the Constitution Bench of this Hon’ble Court, leaving 1 reservation for Scheduled Caste (SC) Category. In respect of elections held in December 2019/January 2020, in Dhule district, 23 out of 56 seats were reserved for Scheduled Tribes (ST) category which was in keeping with the population ratio. This itself consumed 50% upper limit provided by the Constitution Bench of this Hon’ble Court, leaving 3 reservation for Scheduled Caste (SC) Category. In Dhule District the talukas of Saktri and Shirpur are partly ‘Scheduled Areas’. In Nandurbar District, the talukas of Navapur, Taloda, Akkalkuwa and Akrani are fully ‘Scheduled Areas’ and the blocks of Nandurbar and Shahda are partly ‘Scheduled Areas’. I say that both Dhule and Nandurbar Districts, being partly ‘Scheduled Areas’ would fall within the exceptions laid down in the case of Indra Sawhney (Supra). Further, the decision of Indra Sawhney (Supra) was given in respect of reservation measures enabled by Article 16(4) of the Constitution. The principles of reservation which are applicable for public employment and for admission to educational institutions cannot be readily applied in respect of a reservation policy made to protect the interests of the Scheduled Tribes by assuring them of majority of reservation in Scheduled Areas. Further, the case of Indra Sawhney (Supra) reveals that though an upper limit of 50% was 28

prescribed for reservations in public employment, the said decision recognizes the need of exceptional treatment in some circumstances. The case of Indra Sawhney (supra) prescribes an upper limit of 50% (in paragraph 806 of the judgment) because Article 16(4) deals with ‘adequate representation’ and not ‘proportionate representation’. Hence, the elections held in December 2019/January 2020 ought not to set aside for the districts of Dhule and Nandurbar districts.

10. In any event, as set out in detail in the Affidavit dated 13.3.2020, I say that the State Government is unable to provide category wise breakup of population and in particular regarding Backward Class Category (BCC), as that information can be provided only by the Central Government and the same is not forthcoming. It is important that the data of Socio­Economic to the extent only of field relating to the caste of the citizens of Rural Maharashtra, be provided to the State Government by the Central Government, so as to enable the State Government to calculate population belonging to castes that make a part of Backward Caste of Citizens (BCC) in Maharashtra. With regard to the elections held in December 2019/January 2020, in Nagpur, Washim, and Akola districts, the reservations exceeded 50% of the seats, only by 6% to 8% and ought not to be set aside by this Hon’ble Court.

11. I repeat and reiterate that it is important that the data of Socio­Economic to the extent only of field relating to the caste of the citizens of Rural Maharashtra, be provided to the State Government by the Central Government, so as to enable the State Government to calculate population belonging to castes that make a part of Backward Caste of Citizens (BCC) in Maharashtra.

12. Considering the facts and circumstances of the case in hand, the special leave petition deserves to be dismissed.

29

13. That no new additional facts or documents, which are not part of the record are stated or annexed in the counter affidavit.

Hence this Counter Affidavit.

(Deponent) Drawn by: Sd/­ Rahul Chitnis, Advocate. (D.D. Shinde)”

(emphasis supplied)

22. As matter of fact, this affidavit plainly concedes that in case of

some local bodies, the reservation has far exceeded 50 per cent

with nominal seats for general category. At this stage, it may be

relevant to mention that the consolidated affidavit refers to the

previous affidavit(s) dated 5.11.2019 and 13.03.2020 which,

however, do not contain any other statement, or any additional

information, requiring scrutiny in the context of the issues

answered in this decision. The consolidated affidavit also refers to

three interlocutory applications filed in the disposed of SLP (Civil)

Nos. 33904­33910 of 2017. IA No.188324 of 2019 was filed for

direction to allow impleadment of Registrar General of India,

Ministry of Home Affairs, Government of India and Secretary,

Ministry of Social Justice and Welfare as party respondents in the

SLP. That was because the State had sought directions against 30

that party to furnish census data on the basis of which analysis

could be done by the State for providing reservation to OBCs in the

local bodies, in the elections due in 2019/2020. That relief was

claimed by the State in IA No.188318 of 2019. Since the said

elections are completed, the State is free to pursue with the Union

of India for getting requisite information which can be then made

available to the dedicated Commission to be established by it for

conducting a contemporaneous rigorous empirical inquiry into the

nature and implications of backwardness of the concerned groups.

As regards IA No.108915 of 2019 referred to in the consolidated

affidavit, the relief claimed was to defer the impending elections in

the concerned Zilla Parishads and Panchayat Samitis. Those

elections having been completed in 2019/2020, obviously the relief

as claimed is worked out. We, therefore, fail to understand as to

why the State Government wants further hearing of the matter on

such flimsy and specious grounds. To observe sobriety, we say no

more.

31

23. We, however, appreciate the stand taken by the State Election

Commission which is in conformity with the exposition of the

Constitution Bench of this Court; and that it had issued impugned

notifications by making it amply clear to all concerned that the

elections were being conducted as directed by this Court and would

be subject to the outcome of the present writ petitions. The

elections were held only after this Court directed the State Election

Commission to ensure that the elections in the concerned Zilla

Parishads and Panchayat Samitis of as many as five districts (out

of 36 districts) of the State, were not being conducted even after

more than two years from the expiry of term of the outgoing

councillors/members of the concerned local bodies.

24. The State Election Commission had invited our attention to

the fact that, provision similar to Section 12(2)(c) of the 1961 Act

regarding reservation for OBCs finds place in other State

enactments8 concerning the establishment of Village Panchayat,

Municipal Council, Nagar Panchayat, Corporation, etc. Needless to

8 (1) The Maharashtra Village Panchayats Act, 1959 – Section 10(2)(c) (2) Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 – Sections 9(2)(d) and 341(B)(4) (3) The Maharashtra Municipal Corporations Act, 1949 – Section 5A(1)(c) 32

observe that the view taken in this judgment would apply with full

force to the interpretation and application of the provisions of the

stated Act(s) and the State Authorities must immediately move into

action to take corrective and follow up measures in right earnest

including to ensure that future elections to the concerned local

bodies are conducted strictly in conformity with the exposition of

this Court in K. Krishna Murthy (supra), for providing reservation

in favour of OBCs.

25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act is

an enabling provision and needs to be read down to mean that it

may be invoked only upon complying with the triple conditions

(mentioned in paragraph 12 above) as specified by the Constitution

Bench of this Court, before notifying the seats as reserved for OBC

category in the concerned local bodies. Further, we quash and set

aside the impugned notifications to the extent they provide for

reservation of seats for OBCs being void and non est in law

including the follow up actions taken on that basis. In other

words, 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 33

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.

26. As a consequence of this declaration and direction, all acts

done and decisions taken by the 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 the Constitution of

India to do complete justice.

27. It was urged that this Court ought not to exercise plenary

power under Article 142 and abjure from disturbing the completed

elections. However, we are not impressed with this contention

because participation in the elections conducted since December

2019 to the concerned local bodies across the State of Maharashtra

was on clear understanding that the results of the reserved seats

for OBCs would be subject to the outcome of these writ petitions. 34

That was clearly notified by the State Election Commission in the

election programme published by it at the relevant time, in

consonance with the directions given by this Court vide interim

orders. Therefore, the reliefs as claimed and being granted in

terms of this judgment, are in consonance with liberty given by this

Court.

28. Accordingly, these writ petitions must partly succeed. The

challenge to the validity of Section 12(2)(c) of the 1961 Act is

negatived. Instead, that provision is being read down to mean that

reservation in favour of OBCs in the concerned local bodies can be

notified to the extent that it does not exceed aggregate 50 per cent

of the total seats reserved in favour of SCs/STs/OBCs taken

together. In other words, the 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 the outer limit of 50 per cent aggregate in

favour of SCs/STs/OBCs taken together, as enunciated by the

Constitution Bench of this Court. However, the impugned

notifications/orders dated 27.7.2018 and 14.2.2020 and all other

similar notifications issued by the State Election Commission 35

during the pendency of these writ petitions mentioning that the

elections to the concerned local bodies were being held subject to

the outcome of these writ petitions, are quashed and set aside to

the extent of providing reservation of seats in the concerned local

bodies for OBCs. As a consequence, follow up steps taken on the

basis of such notifications including the declaration of results of

the candidates against the reserved OBC seats in the concerned

local bodies, are declared non est in law; and the seats are deemed

to have been vacated forthwith prospectively by the concerned

candidate(s) in terms of this judgment. The State Election

Commission shall take immediate steps to announce elections in

respect of such vacated seats, of the concerned local bodies, not

later than two weeks from today, to be filled by general/open

category candidates for the remainder term of the

Panchayat/Samitis. Ordered accordingly.

The writ petitions are disposed of in the above terms. No

order as to costs.

36

All pending applications also stand disposed of.

……………………………J. (A.M. Khanwilkar)

……………………………J. (Indu Malhotra)

……………………………J. (Ajay Rastogi) New Delhi;

March 04, 2021.