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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 4860 of 2008
01. Vikramsing s/o Jalamsing Walvi ]
age 43 years,occup.Agriculture ]
R/of Esai nagr, Post Dhanora, ]
Taluka & District Nandurbar. ]
02. Uttam s/o Nimbha Deshmukh ]
age 32 years, occup.Agriculture]
R/o Mohagaon, Post Shendwad, ]
Taluka Sakri, Dist. Dhule. ] Petitioners
versus
01. The State of Maharashtra, ]
through Secretary, ]
Rural Development Department, ]
Mantralaya, Mumbai. ]
02.
The State Electioin Commission ]
Maharashtra State, Mumbai ]
04. Union of India, ]
through its Secretaray, ]
Panchat Raj and Development ]
of North Eastern Region, ]
New Delhi - 110001 ]
04. The Secretary, ]
Tribal Development Department, ]
Government of India, ]
New Delhi. ]
05. The Director,
National Commission for ]
Scheduled Tribes, Room No.309, ]
Nirman Sadan, C.G.O. Building, ]
52-A, Arera Hills, ]
Bhopal - 462011 (M.P.) ] Respondents
AND
06. Suresh s/o Damu Bhambre, ]
Age 50 years, occup.Agriculture]
r/o Malpur, Taluka Sakri, ]
District Dhule. ]
07. Tatya s/o Hari Thakur (Bhil) ]
age 50 years, occup. Labour ] Intervenors
and Agriculture, r/o Surpan ] Respondents
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Taluka Sakri, Dist. Dhule. ] No. 6 and 7.
08. Rahul s/o Vishvasrao Randhe, ]
age 30 years, occup. social ] Intervenor
work, r/o Boradi, Tq.Shirpur, ] Resp. No.8
District Dhule).
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Shri P.M. Shah, Senior Counsel, instructed by
Shri P.D. Bachate, Advocate, for the Petitioners.
Shri Umakant Patil, A.G.P. for Respondent No. 1.
Shri S.T.Shelke, Advocate, for Respondent No. 2.
Shri N.S.Chaudhary,Adv.for Respondents No. 3 to 5.
Shri V.D.Hon,Advocate, for Respondents Nos. 6 & 7.
Shri P.S.Patil, Advocate, for Respondent No. 8.
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Coram: N.V. Dabholkar & N.D. Deshpande, JJ.
Judgment reserved on : 24th October 2008.
Judgment pronounced on: 31st October 2008.
Judgment : (Per: Dabholkar, J.)
01. As described in petition paragraph 2 and prayer
clause (B), the Petitioners have approached this court
for a relief of writ of mandamus or any other
appropriate writ, order or direction in the like nature,
directing Respondents-authorities and more particularly
Respondent No.2-State Election Commission to give effect
to and strictly comply with The Provisions of the
Panchayats (Extension to the Scheduled Areas) Act, 1996
(henceforth referred to as “PESA” for the sake of
brevity), during ensuing elections of Zilla Parishads
and Panchayat Samitis, pertaining to Dhule and Nandurbar
Districts.
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02. PESA, an Act of Parliament, received assent of
the President, on 24th December 1996 and the objects and
reasons for enacting the same can be read in the
preamble which runs thus;
“. An Act to provide for the extension of
the provisions of Part IX of the Constitution
relating to Panchayats to the Scheduled Areas.”
Part IX was inserted in the Constitution, by the
Constitution (Seventy Third amendment) Act 1992, which
came into force with effect from 24th April 1993 vide
Notification No.S.O.267(E).
. Observing that the Panchayati Raj Institutions
had not been able to acquire status and dignity of
viable and responsive people’s bodies due to a number of
reasons, although Article 40 of the Constitution
enshrined one of the Directive Principles that the State
shall take steps to organize the village Panchayats and
endow them with such powers and authority as may be
necessary to enable them to function as units of self
government, it was considered to be imperative need to
enshrine in the Constitution certain basic and essential
features of Panchayati Raj Institutions to impart
certainty, continuity and strength to them, the Seventy
Third amendment was inserted to achieve following
objectives.
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“Accordingly,it was proposed to add a new part,
relating to Panchayats in the Constitution,to
provide for among other things, Gram Sabha in a
village or group of villages, constitution of
Panchayats at village and other level or levels;
direct elections to all seats in Panchayats at
the village and intermediate level, if any, and
to the offices of Chairpersons of Panchayats at
such levels; reservation of seats for the
Scheduled Castes and Scheduled Tribes in
proportion to their population for membership of
Panchayats
ig and office of Chairpersons in
Panchayats at each level, reservation of not
less than one-third of the seats for women;
fixing tenure of 5 years for Panchayats and
holding elections within a period of 6 months in
the event of supersession of any Panchayat,
disqualifications for membership of Panchayats;
devolution by the State Legislature of powers
and responsibilities upon the Panchayats with
respect to the preparation of plans for economic
development and social justice and for the
implementation of development schemes; sound
finance of the panchayats by securing from the
Consolidated Fund of the State, as also
assignment to, or appropriation by, the
Panchayats of the revenues of designated taxes,
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duties, tolls and fees; setting up of a Finance
Commissioin within one year of the proposed
amendment and thereafter every 5 years to review
the financial position of Panchayats, auditing
of accounts of the Panchayats, powers of State
Legislature to make provisions with respect to
the elections to Panchayat under the
superintendence, direction and control of the
chief electoral officer of the State;
application of the provisions of the said Part
to Union territories; excluding certain States
and areas from the application of the provisions
of
the said Part; continuance of existing laws
and Panchayats until one year from the
commencement of the proposed amendment and
barring interference by courts in electoral
matters relating to Panchayats.”
. We have underlined some portion above, for the
purpose of emphasis, since we believe that the dispute
raised in the writ petition revolves around the issue of
reservation of seats for the Scheduled Caste and
Scheduled Tribes.
. Article 243(d) of the Constitution, which is
interpretation clause in Part IX, defines “Panchayat” as
to mean an institution (by whatever name called) of self
government constituted under Article 243-B for the rural
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areas. Article 243-B contemplates constitution of
Panchayats at the village, intermediate and district
levels, in accordance with the provisions of this part.
The Gram Panchayat, Panchayat Samiti and Zilla Parishads
are thus “Panchayats” constituted at village,
intermediate and district level, in the State.
. We may usefully reproduce part of Article 243-M
and 244, which are required to be considered for the
purpose of resolution of dispute raised by the writ
petitioners.
“243-M:- Part not to apply to certain areas.
(1) Nothing in this part shall apply to the
Scheduled Areas referred to in clause (1) and
the tribal areas referred to in clause (2) of
Article 244.
(2) Nothing in this part shall apply to :-
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3A) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(4). Notwithstanding anything in this
Constitution:-
(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b) Parliament may, by law, extend the
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(7)provisions of this part to the Scheduled Areas
and the Tribal Areas referred to in clause (1),
subject to such exceptions and modifications as
may be specified in such law, and no such law
shall be deemed to be an amendment of this
Constitution for the purposes of Article 368. ”
. Thus, it is evident that applicability of part
IX is prohibited to the Scheduled Areas and Tribal Areas
referred to in clauses (1) and (2) respectively of
Article 244. But, by virtue of clause (4)(b), the
Parliament is empowered, by law, to extend the
provisions of this part to the Scheduled Areas and the
Tribal Areas,
ig subject to such exceptions and
modifications as may be specified in such law. As can
be seen from preamble of PESA quoted hereinabove, the
said Act is enacted to extend the provisions of part IX
of the Constitution, relating to Panchayats, to the
Scheduled Areas.
. Article 244 is contained in part X of the
Constitution titled as “The Scheduled And Tribal Areas.”
and the same reads as under;
“244. Administration of Scheduled Areas and
Tribal Areas:- (1) The provisions of the Fifth
Schedule shall apply to the administration and
control of the Scheduled Areas and Scheduled
Tribes in any State, other than the States of
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(8)Asam, Meghalaya, Tripura and Mizoram.”
. Thus, the Scheduled Areas and Tribals in the
Maharashtra State, by virtue of Article 244(1) of the
Constitution, shall be administered and controlled in
accordance with the provisions of the Fifth Schedule of
the Constitution.
. In exercise of powers conferred by sub para (2)
of paragraph 6 of the Fifth Schedule to the Constitution
of India, the President, in consonance with the Governor
of the State, has declared Scheduled Areas in the State
of Maharashtra,
igby the Scheduled Areas (Maharashtra)
Order 1985 (copy of which is at Exhibit B to the
Petition). Dhule and Nandurbar Districts (In fact,
existing Nandurbar District is originally a part of
Dhule District), are at Entry No.3. Entire Tahsils of
Navapur, Taloda, Akkalkuva and Akrani (which are now
part and parcel of Nandurbar District) are declared
Scheduled Area. Similarly, 80 villages out of 221, from
Sakri Tahsil (still part of Dhule District), 82 villages
in Nandurbar Tahsil and town Nandurbar (now part of
Nandurbar District), 141 villages in Shahada Tahsil (now
part of Nandurbar district) and 62 villages in Shirpur
Tahsil out of 150 (now part of Dhule Tahsil) are
declared to be the Scheduled Area. There is no dispute
that parts of Dhule and Nandurbar Districts are declared
as Scheduled Area and not entire Dhule or entire
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Nandurbar District. Thus, Dhule and Nandurbar are the
two Zilla Parishads, part of each having been declared
as Scheduled Areas, by the President of India in
exercise of powrs conferred upon His Excellency, by
paragraph 6 of the Fifth Schedule of the Constitution.
03. Both the Petitioners claimed to be residents of
declared Scheduled Areas. Petitioner No. 1 was elected
as a member of Panchayat Samiti from Dhanora
constituency and consequently, he was also elected as
Chairman of Panchayat Samiti, Nandurbar. Both these
seats were reserved for Scheduled Tribe category in the
last election.
igPetitioner No. 2 is Sarpanch of village
Mohagaon, a seat reserved for Scheduled Tribe category.
Petitioners are desirous of contesting forthcoming
elections of Zilla Parishad and Panchayat Samiti, from
the respective constituencies. (They are residents of
village Dhanora and Mohagaon). According to
Petitioners, Article 243-D prescribes reservation of
seats for S.C. and S.T. in every Panchayat and the
number of seats so reserved, are required to bear as
nearly as may be, the same proportion to the total of
seats to be filled in, by direct election in that
Panchayat, as the population of Scheduled Caste/Schedule
Tribe in the Panchayat Area bears to total population of
that area. (To describe in brief, reservation according
to population ratio). One-third of the seats so
reserved, are further required to be reserved for women
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belonging to the respective categories.
. According to Petitioners, Union of India has
enacted PESA and thus extended the provisions of Part IX
of the Constitution relating to Panchayats to the
Scheduled Areas, subject to such exceptions or
modifications as provided in Section 4 of the said Act.
The Petitioners have reproduced Section 4(g) of PESA for
ready reference, which runs thus;
“4. Notwithstanding anything contained under
Part IX of the Constitution, the Legislature of
a
State shall not make any law under that Part
which is inconsistent with any of the following
features, namely,:-
(a) to (f) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(g). the reservation of seats in the
Scheduled Areas at every Panchayat shall be in
proportion to the population of the communities
in that Panchayat for whom reservation is sought
to be given under Part IX of the Constitution.
. Provided that the reservation for the
Scheduled tribes shall not be less than a
One-third of the total number of seats;
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. Provided further that all seats of
Chairpersons of Panchayats at all levels shall
be reserved for the Scheduled Tribes. "
. According to the Petitioners, once part area is
declared as Scheduled Area, as referred to in clause (1)
of Article 244 of the Constitution, there cannot be
rotation of seats in the Scheduled Area (as contemplated
by Article 243-D(1)), as PESA clearly indicates
reservation for Scheduled Tribes in the Scheduled Area.
On 2.12.1985, Presidential Order about the Scheduled
Areas (Maharashtra) is published, declaring certain
areas
of Dhule and Nandurbar Districts to be Scheduled
Areas under paragraph 6 of the Fifth Schedule of the
Constitution. The State Election Commission and other
authorities of the State are, therefore, required to
reserve seats in the Scheduled Area for the forthcoming
elections for Zilla Parishad and Panchayat Samitis in
accordance with provisions of PESA. The Petitioners, by
representations to the Honourable the Chief Minister, as
also the State Election Commission, requested to
implement the provisions of PESA (reservation in
accordance with provisions of PESA), at the ensuing
Zilla Parishad and Panchayat Samiti Elections. (As
informed by Advocate Shri S.T.Shelke for the State
Election Commission, the election programme is likely to
be declared on 10.11.2008, polling is proposed to be
scheduled on 30.11.2008 and counting on 2.12.2008. This
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is because, the term of existing Zilla Parishad and
Panchayat Samiti ends sometime between 20th and 30th
December 2008.) According to the Petitioners, PESA is
enacted with the aim and object that the administration
and control of Scheduled Areas shall be in the hands of
Scheduled Tribes.
. The State of Maharashtra has effected amendments
to the Maharashtra Zilla Parishads and Panchayat Samitis
Act, 1961 (henceforth referred to as “ZPPS Act”), as a
result of amendments to Sections 12(2)(b) and 58 (1-B)
(b), which are not in consonance with and in fact,
contrary to
Parts IX and X of the Constitution, i.e.
Articles 243, 243-D, 244 and Schedule Fifth of the
Constitution of India, read with PESA, a central
legislation. The Petitioners believe that during the
discussion in the meetings, the Respondents-authorities
and the State Election Commission overlooked the
provisions of PESA.
. Local Member of Parliament, Shri B.H.Chaure, had
moved the Hon’ble Chief Minister, as well as Election
Commissioner, for declaring above referred provisions of
ZPPS Act, as null and void, since those are in conflict
with Articles 244(1), Fifth Schedule of the Constitution
and Section 4(g) of PESA. He also had moved,Director,
National Commission for Scheduled Tribe, Bhopal, to look
into the matter ( Exh.C colly.). It appears that, the
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Chairperson of National Commission for Scheduled Tribes,
had moved the Hon’ble Chief Minister requesting to
initiate immediate action to amend through Ordinance,
ZPPS Act, for supersession of earlier amendment and
bringing the same in harmony with Section 4(g) of PESA
(Exh. D). (Exhibits C and D are the communications
dated May/July, 2008).
. Petitioners have prepared at Exhibit E, a table
of reservation proposed by the State Election Commission
for Zilla Parishads and Panchayat Samitis, at the
ensuing elections, as gathered by them during the
meetings held
on 27.5.2008, 13.6.2008 and 1.7.2008.
According to Petitioners, Respondents-authorities are
neglecting the provisions of PESA and amended provisions
of ZPPS Act, are likely to create chaos due to conflict
between Central legislation (PESA) and State legislation
(ZPPS Act). According to the petitioners, PESA is a
legislation with superior efficacy and it must prevail
over ZPPS Act, to the extent provisions of the said
State Act are not in harmony with PESA. For the purpose
of pleading that so far as governance of Scheduled Area
through Panchayats is concerned, no other enactment,
much less a State legislation will be applicable,
reliance is placed upon the speech of the Hon’ble
Minister of Rural Areas and Employment (Shri Yerran
Naidu), at the time of introduction of the bill to
provide for extension of provisions of Part IX to the
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Scheduled Areas (PESA). (Exh. F).
“. After the enactment of the Constitution
73rd Amendment Act, these State Governments
having Scheduled Areas, enacted the State
Panchayat laws which did not exclude the
Scheduled Area. This action on their part
tantamount to extension of legislation on
Panchayati Raj to the Scheduled Area.s The
extension of Part IX of the Constitution by the
States of Andhra Pradesh and Bihar to Scheduled
Areas was challenged in their respective High
Courts.
ig The Courts have held the extension of
State Panchayats Acts to the Scheduled Areas as
ultra vires of the Constitution and viewed that
Part IX can be extended to these Scheduled Areas
only through an Act on the Parliament, as
provided in Article 243 M (4) (b) of the
Constitution. That is why I am introducing the
present Amendment which would apply to the
Scheduled Areas in eight States. ”
04. In case of all the parties, submissions are just
elaborations of the pleadings and, therefore, it would
be desirable and useful to sum up the submissions
advanced on behalf of the Petitioners, by Shri P.M.
Shah, learned Senior Counsel.
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. Learned Senior Counsel Shri Shah desired us to
take into consideration certain specific dates and the
dates to which he drew our attention can be enlisted as
follows;
24.04.1993. Part IX of the Constitution of India
came into force.
30.10.1996. Maharashtra Zilla Parishads and
Panchayat Samitis (Manner and rotation
of Reservation of Seats) Rules 1996.
24.12.1996. PESA came into force.
03.01.1997. Amendment to ZPPS Act (Sections 12(2)(b)
and 58 (1-B)(b) came into force,
initially by way of Ordinance I of 1997
and then by amendment to the Act.
. It was submitted that in view of Article 243-M
read with Article 244(1) and Fifth Schedule, Part IX of
the Constitution would not apply to the Areas declared
as Scheduled Area, by Presidential order of 1985
(Exh.B). The Central legislation (PESA) is the only
legislation that can govern the Scheduled Area for the
purpose of Panchayati Raj and reservation ought to be in
accordance with Section 4(g) of PESA. The Election
Commission, according to learned Senior Counsel Shri
Shah, seems to plead that it follows 1996 Rules, due to
judgment in Writ Petition No.5386 fo 2006, delivered by
this Court on 3.10.2006. But, rule 4(2) of the
Maharashtra Z.P and P.S. (amendment and rotation of
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reservation of seats) Rules 1996 (henceforth referred to
as “the 1996 Rules” for brevity’s sake), is in conflict
with Section 4(g) of PESA, since the said rule restricts
only one reservation per block, by rotation, whereas
PESA neither recommends rotation nor reservation of only
one seat per block, which may cause at times, only 50
per cent seats for S.T., although population of ST is
more than 50 per cent as compared to total population of
the block.
. Section 2(26-A) of ZPPS Act defines “Scheduled
Areas” to mean it the Scheduled Areas referred to in
clause
(1) of Article 244 of the Constitution of India.
Section 12(2)(b), as applicable to Zilla Parishads and
Section 58(1-B) (b) Panchayat Samitis, are identically
worded and thse are the provisions prescribing
reservations at Zilla Parishads and Panchayat Samitis.
elections respectively. We were specifically taken to
first two provisos, out of the three provisos, below
Sections 12(2)(b) and 58 (1-B)(b). We reproduce those,
as below.
” Provided that in a Zilla Parishad (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 Zilla Parishad.
(Panchayat Samiti)
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(17). Provided further that, the reservation
for the Scheduled Tribes in a Zilla Parishad
(Panchayat Samiti) falling only partially in the
Scheduled Areas shall be in accordance with the
provisions of clause (b).”
”
. We may state here itself that concluding clauses
of Section 12(2)(b) and Section 58(1-B)(b) identically
read:
“…….. and such seats shall be allotted by
rotation
to different electoral divisions /
colleges in a Zilla Parishad/Panchayat Samiti.”
. According to learned Senior Counsel Shri P.M.
Shah, the PESA does not recommend rotation, which would
be applicable even to the Scheduled Area, by virtue of
first proviso, because reservations for Zilla Parishads
or Panchayat Samitis comprising entirely the Scheduled
Areas, are to be governed by clause (b) of the
respective sections. (terminal clause of which,
prescribing rotation, is reproduced hereinabove).
. It was submitted that second proviso practically
derecognises the Scheduled Area as such, when it is only
a part of Zilla Parishad / Panchayat Samiti Area,
because in such areas, reservations are to be governed
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only by clause (b) and first proviso, pertaining to
Zilla Parishad / Panchayat Samiti comprising entirely
the Scheduled Area, will not come into play and thereby,
there shall not be a mandate for reservation at least
One-half of the total number of seats for the Scheduled
Tribe. The second proviso thus conflicts with first
proviso to Section 4(g) of PESA.
. Shri Shah, learned Senior Counsel, has also
placed reliance upon paragraph 7 of the affidavit in
reply filed by Smt. Susan George, Director, in the
Ministry of Panchayati Raj, New Delhi, on behalf of
Respondent Nos.
ig 3 to 5, with emphasis on observations
of the Committee under the chairmanship of Shri Dilip
Singh Bhuria, Member of Parliament, in its report dated
17.1.1995, reproduced within paragraph 7 of the reply
itself.
. Learned Senior Counsel also did not fail to draw
our attention to paragraphs 3, 5 and 6 of the reply
filed by Shri Rajiv Pandey, Under Secretary, State
Election Commission, on behalf of Respondent No.2. It
was pointed out that in the judgment in Writ Petition
No.5386 of 2008, which the Election Commission referred
in its reply, the court was not considering either
Article 243-M or provisions of PESA.
. Lastly, learned Senior Counsel urged to consider
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that once the Scheduled Area is declared by the
President, which is part of Zilla Parishad or Panchayat
Samiti, for the purpose of working out elections,
practically the court may examine desirability of
treating such area as one Division governed by PESA and
another Division governed by ZPPS Act.
05. While advancing submissions on behalf of the
State Election Commission, Advocate Shri S.T.Shelke
submitted that the State Election Commission neither
opposes nor supports the Petition and it will follow the
verdict that will be delivered by the court. He has
given us tentative election programme and has urged that
delivery of judgment even during vacation, if possible,
will leave time margin for State Election Commission, if
it is required to do exercise of readjustment of
reservations, in the light of verdict of the Court. He
has supported the argument of learned Senior Counsel
Shri Shah for the Petitioners that while delivering
judgment in Writ Petition No.5386 of 2006 on 3.10.2006,
this court was not considering provisions of PESA,
although rigour of that judgment is subsequently diluted
by judgment of another Division Bench of this High Court
in Writ Petition No.6389 of 2006 rendered on 9.2.2007
(reported at 2007 (4) Mh.L.J.341)
. According to Advocate Shri Shelke, delimitation
and reservation for ensuing elections is done by the
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State Election Commission, by following directions in
the said two judgments. He also urged the court to
examine, if amendments to Sections 12 and 58 of the ZPPS
Act, are within legislative competence of the Governor
of the State, by para 5 of the Fifth Schedule of the
Constitution.
. In the reply on behalf of the State Election
Commission, filed by Shri Rajiv Pandey, it is contended
that the State Election Commission is not responsible
for implementing the provisions of PESA. The
responsibility of putting forth a proposal before the
Maharashtra
State Legislature for implementation of the
said Act, is with the Rural Development Department of
the State Government. The Election Commission has
implemented the order passed by Aurangabad Bench of
Bombay High Court in Writ Petition No. 5386 of 2006,
wherein this Court had directed that the policy of
rotation in reservation of seats has to be followed. By
decision in Writ Petition No.6389 of 2006 and five other
writ petitions, this court has also directed the
Election Commission to devise suitable modalities under
its powers to give true effect and meaning to the
rotation policy as envisaged in the constitutional
scheme and the 1996 Rules. Elections of 27 Zilla
Parishads in the State are completed in the year 2007.
The State Election Commission has sent several letters
to the Government of Maharashtra to delete proviso to
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Rule 4 (2) of the 1996 Rules. However, no action is
taken by the State Government to that end. The said
proviso insists that, reservation of Zilla Parishad
seats for SC and ST should be limited only to one seat
per Panchayat Samiti, which is not feasible in several
districts where seats for SC and ST exceed the number of
Panchayat Samitis. Dhule Zilla Parishad consists of
four Panchayat Samitis. On the basis of Scheduled Tribe
population, 18 seats have been reserved for ST in the
said Zilla Parishad and 40 seats are reserved in
Nandurbar Zilla Parishad, in six Panchayat Samitis. In
both these Zilla Parishads, every Panchayat Samiti has
more than one seat reserved for ST. As the seats for ST
are to be reserved on the basis of population ratio of
that category, the State Election Commission has not
been able to give effect to Rule 4(2) of the 1996 Rules.
. The submission on behalf of the State Election
Commission that it would be unfair to rotate seats
earmarked for Scheduled Tribe, particularly in the
Scheduled Area, because seats earmarked for the
Scheduled Tribes would move out of the Scheduled Area,
was not accepted by this court in Writ Petitiion No.5386
of 2006. The term of Zilla Parishads of Dhule and
Nandurbar expires on 27.12.2008 and the elections to the
same are required to be completed before that date. It
is urged that changes, if any, which are required to be
carried out in the reservation at this stage, would
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affect entire electoral process in these districts and
it may not be possible to complete the election process
before expiry of the terms.
06. While opposing the petition, it was contended by
Shri Umakant Patil, learned A.G.P. that Article 243-D
provides rotation which is not provided by PESA. PESA
is silent on the aspect and, therefore, Sections
12(2)(b) and 58 (1-B)(b) of the ZPPS Act to the extent
those provisions prescribe rotation, do not conflict
either with the Constitution or PESA. According to
leaned A.G.P., the amendments to those Sections are,
therefore,
in harmony with Article 243-D and PESA. It
was impliedly submitted that, if the second proviso to
Sections 12(2)(b) and 58 (1-B)(b), which are taken
exception to by the learned Senior counsel for the
Petitioners, are to be ignored, then it will be treating
the entire Zilla Parishad or Panchayat Samiti as the
Scheduled Area, as soon as the President declares some
portions as Scheduled Area.
. An affidavit in reply is filed by Shri Paras
Bothra, Deputy Commissioner, (Establishment), in the
office of Divisional Commissioner, Aurangabad, on behalf
of the State. It is contended that considering the
essence of Article 243-D and the provisions of PESA,
necessary amendments are made in ZPPS Act, by
Maharashtra Acts 20 and 40 of 1997. By these
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amendments, principle of proportionate representation to
the Scheduled Tribe and reservation of One-half of total
number of seats to the Scheduled Tribes in the Scheduled
Area, has been observed. It is contended that the
provisions pertaining to reservation of all seats in the
Scheduled Area of Chairpersons of Panchayat at all three
levels of Panchayat to STs also exists in the said
amendment.(Such
(Such amendment, finds place in Sections 42
and 67 respectively, as applicable to Zilla Parishads
and Panchayat Samitis respectively, provided entire area
of the same is Scheduled Area).
Area) It is contended that
the amendments are in harmony with Article 243-D and,
therefore, it
cannot be said that the provision of
rotation for Scheduled Area is not in line with
constitutional provisions.
. In regard to representations of Petitioners, it
is submitted that the Govt. had invited all concerned,
including the representatives of the petitioners for
meetings, the issue was discussed and it was decided
that the department should scrutinise the proposal as
per the provisions of ZPPS Act, constitutional
provisions and PESA and submit a proposal to the Cabinet
for necessary decision. Representatives from Dhule
District have submitted a counter representation on
24.6.2008, pleading for maintaining rotation system.
Opinion was obtained from Law and Judiciary Department
and it has clearly opined that the provisions in ZPPS
Act, and more particularly Sections 12(2)(b) and 58
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(1-B) (b) are consistent with the constitutional
provisions and there is no need to amend those.
07. Shri N.S.Choudhari, standing counsel for Union
of India, has drawn our attention to Article 244.
According to him, in view of Article 243-M(4)(b), it is
the Parliament which is competent to extend the
provisions of Part IX to the Scheduled Areas and the
Tribal Areas and, therefore, reference to either union
list or concurrent list or State list is not necessary.
According to Advocate Shri Choudhari, in view of Article
254(1), law made by the Parliament shall prevail and the
law made by Legislature of State shall, to the extent of
repugnancy, be void. Learned counsel for the Central
Government has indirectly supported the writ petition.
. Reply filed on behalf of Respondent Nos. 3 to
5, mainly relies upon recommendations in paragraphs 17
and 30 of the Committee headed by Shri Dilip Singh
Bhuria, reproduced in para.7 of the reply, which read;
“17. Since the Scheduled Areas and Tribal
Areas are expected to have majority of tribal
population, the different tier Panchayats
therein should have majority of Scheduled Tribe
Members. Further, both the Chairman and Vice
Chairman should also belong to STs. ”
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“30. The Group was further of the view that
notwithstanding the fact that the areas under
consideration i.e. Scheduled Areas are expected
to have majority of tribal population, it is
necessary to stipulate that the Panchayats
therein will have a majroty of Scheduled Tribe
members. The reason is that, the Scheduled
Areas were notified as such, on account of
majority of Scheduled Tribe population,
contiguity etc. In course of time, on account
of influx of non-ST population, in a few
Scheduled Areas, the status of the ST population
might
have been reduced to minority. That
should not be regarded to have altered over-all
the character of Scheduled Areas. The chairman
and vice chairman should belong to the Scheduled
Tribe. One-third of the seats should be
reserved for women.”
. However, paragraph 8 of the reply is concluded
by saying that, there is no explicit mention that once a
particular area is declared as Scheduled Area, there
cannot be a rotation of seats in the Scheduled Area.
08. The three intervenors are resisting the petition
and Advocate Shri V.D.Hon for intervenors – Respondent
nos. 6 and 7 submitted that PESA is being followed and
implemented through amendments to ZPPS Act. According
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to him, the petitioners have not challenged the validity
of amendments to Section 12 and Section 58 of ZPPS Act
and, therefore, no such declaration now can be issued.
In view of absence of prayer for such a declaration, the
petition deserves to be dismissed. It was submitted
that PESA was enacted for the purpose of development of
Scheduled Area and some provisions regarding elections
are also part of it. Entire Zilla Parishad, Dhule is
not declared as Scheduled Area by the President and
hence, according to Shri Hon, PESA will not come in
action for entire Zilla Parishad, Dhule. According to
Advocate Shri Hon, Article 243-O would now operate as a
bar to grant any relief.
. Advocate Shri P.S.Patil for Respondent No.8,
apart from adopting the arguments advanced by Shri Hon,
has placed reliance upon couple of reported judgments.
He has also urged that it is too late to issue
directions to correct any irregularity/illegality and,
therefore, if at all this Court is inclined to issue any
directions, those may be directed to be implemented at
the time of next elections and not the present
elections.
09. To describe in brief, the petitioners, Union
Government on one side have come with a case that the
provisions of PESA are not being implemented, sofar as
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elections of Zilla Parishads and Panchayat Samitis in
revenue districts of Dhule and Nandurbar are concerned,
in spite of the fact that, a considerable part of both
Zilla Parishads is declared to be Scheduled Area, by the
President of India, by the Scheduled Area (Maharashtra)
Order, 1985. Although Election Commission has taken a
role of an observer, by conceding that it shall
implement the directions those may be issued by this
Court, State and intervenors have opposed the Petition,
by contending that the provisions of PESA are being
given effect within the State and more particularly, for
the purpose of elections to Zilla Parishads and
Panchayat Samitis
ig in revenue districts of Dhule and
Nandurbar, where there exists Scheduled Area in the
territorial limits of each Zilla Parishad. Naturally,
the first task before us is to find out whether
provisions of PESA are being given effect to, at the
elections of the Panchayats within the State of
Maharashtra and the area declared as Scheduled Area by
the President, may be by amendment to ZPPS Act and,
therefore, it is necessary to compare the relevant
provisions from the two legislations, as also 1996 Rules
enacted by the State, also for the same purpose.
. In fact, the reservation of seats for
SC/ST/women at the elections of Panchayats, is provided
by Article 243-D, as contained in Part IX of the
Constituion and without reproduction of entire Article
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243-D (inserted with effect from 24.3.1993), the scheme
of the reservations provided by the said Article can be
summed up as under;
(i). Specific reservation of seats for
Scheduled Castes and Scheduled Tribes.
(ii). Reservation of seats as per population
ratio of the communities.
Rotation of seats is permissible -
"Such seats may be allotted by rotation
to different constituencies"
(iii). Not less than One-third seats amongst
those reserved for SC/ST, to be further reserved
for women of the same category.
(iv). Not less than one-third of the total
seats to be reserved for women (by taking into
account the seats already reserved for SC/ST
women).
Rotation of seats reserved for women is
permissible.
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(v). Reservations of Offices of the
Chairpersons as per State legislation, but
according to population ratio, and One-third for
women. (Reservations for women permissible by
rotation).
(vi). Reservation for OBC by State
legislation.
. We have already reproduced Section 4(g) of PESA
and the scheme of reservations, under the said Central
Legislation (came into force on 24.12.1996) can be
summed up as under;
(i). Reservations for SC/ST as per population
ratio.
(ii). Not less than 50 per cent seats of the
total number of seats to be reserved for ST.
(iii). All seats of Chairpersons of Panchayats
at all levels to be reserved for ST.
. The provisions regarding reservations by State
legislation, are contained in Sections 12(2)(b) and 58
(1-B) (b) of ZPPS Act (as amended with effect from
3.1.1997). Both the Sections are identically worded,
the first one being applicable, sofar as elections to
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Zilla Parishads are concerned, and the later one for the
elections to Panchayat Samitis. In addition, there is a
set of rules-Maharashtra Zilla Parishads and Panchayat
Samitis (manner and rotation of reservations of seats)
Rules 1996, which came into force on 30.10.1996.
. Under the provisions of ZPPS Act, the scheme of
reservation can be summed up as under.
(i). Provision of reservation for SC/ST/OBC
and Women.
(ii).
Reservation for SC/ST as per population
ratio and by rotation,
rotation "such seats shall be
allotted by rotation to different electoral
divisions/colleges.".
(iii). Not less than 50 per cent seats to be
reserved for ST, if “entire area” is declared as
Scheduled Area.
(iv). Reservation for ST as per clause (b)
i.e. population ratio, if only part of area is
declared as Scheduled Area.
(v). Only one-third seats from amongst seats
reserved for SC/ST, to be reserved for women of
such category, by rotation.
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. When we refer to 1996 Rules, the implementation
of reservations is prescribed as follows;-
(i). As per Rule 3, reservation for SC/ST as
per Sectiion 12(2) of ZPPS Act, i.e. population
ratio.
(ii). Reservation of seats by rotation,
beginning with the constituency having highest
population of the reserved category and rotating
to the constituencies in descending order of
population.
(iii). Rotation of SC/ST seats to electoral
divisions, where there was no such reservation
in earlier election.
(iv). Not more than 1 seat (to be reserved) in
any one Block (Note: on reading Sections 2 (3),
5 and 56 of ZPPS Act, together one Block becomes
equivalent to one Panchayat Samiti).
. By virtue of clause (4) (b) of Article 243-M,
the Parliament is empowered to enact a legislation to
extend the provisions of Part IX of the Constitution to
the Scheduled Area, and PESA is that legislation. The
Parliament is also empowered to extend such application
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of Part IX, subject to exceptions and modifications as
may be prescribed in such law. Section 3 of PESA reads;
"3. The provisions of Part IX of the
Constitution, relating to Panchayats are hereby
extended to the Scheduled Areas, subject to such
exceptions and modifications as provided in
Section 4.”
. We have already reproduced Section 4(g) of PESA
in the earlier part of this judgment and in the process,
have also reproduced opening part of Section 4, which we
reproduce at the cost of repetition;
“4. Notwithstanding anything contained under
Part IX of the Constitution, the legislature of
a State shall not make any law under that part,
which is inconsistent with any of the following
features, namely;
………………………………………..
………………………………………..”
. On comparison of Article 243-D with Section 4(g)
of PESA, following features of distinction can be
noticed.
. Article 243-D contemplates allotment of reserved
seats by rotation to different constituencies. It also
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contemplates that not less than One-third of the total
number of seats reserved shall be reserved for women
belonging to respective reserved categories. It also
makes provision for not less than One-third seats of the
total number of seats in every Panchayat, to be reserved
for women and to be allotted to different constituencies
by rotation. It must be said that clause (g) of Section
4 of PESA, which introduced exceptions/modifications to
the application of Part IX of the Constitution to the
Scheduled Area, is silent on all above aspects.
. It can be said that the two provisos to main
clause (g) of
ig Section 4 of PESA clearly provide
modifications to the provision regarding reservation as
contained in Part IX of the Constitution, in the form of
Article 243-D. The first proviso prescribes that
reservation for the Scheduled Tribes shall not be less
than a one-half of the total number of seats. The
second proviso requires all seats of Chairpersons of
Panchayats at all levels to be reserved for Scheduled
Tribes. What is prescribed by these two provisos to
clause (g) of Section 4 of PESA, does not find place in
Article 243-D. On the contrary, clause (4) of Article
243-D empowers the State Government to make a law for
providing reservation for Scheduled Castes, Scheduled
Tribes and women to the offices of Chairpersons in the
Panchayats at any level and proviso to clause (4) of
Article 243-D prescribes that the reservation to the
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offices of Chairpersons shall also bear the same
proportion to total number of offices of Chairpersons as
per the population ratio. First proviso to Section 4(g)
may appear to be in conflict with Article 243-D, because
in a given case the reservation for Scheduled Tribe may
be 50 per cent, although population of the Scheduled
Tribe may not be fifty percent. The Second proviso is
clearly in conflict with clause (4) of Article 243-D.
However, since Article 243-M (4) begins with
non-obstante clause, "Notwithstanding anything in this
Constitution" and sub clause (b) of said clause (4)
empowers the Parliament to make a law subject to
exceptions and
modifications without such law being
deemed amendment of the Constitution, it may not be
possible to express that the modifications as contained
in the two provisos are unconstitutional. Liberty to
modify Part IX as applicable to the Scheduled Area with
exceptions and modifications,is granted by Article
243-M(4)(b) itself.
. As regards rotation of reserved seats and
reservation for women provided in Article 243-D, PESA is
silent. It does not specifically prohibit “rotation” as
well as “one-third reservation for women” either within
the reserved seats, or within total number of seats of
Panchayat. By Section 3, Part IX of the Constitution is
extended in its application to Scheduled Areas subject
to the exceptions/modifications as in Section 4 of PESA.
The modifications, indicated hereinabove; are contained
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in two provisos. However, it may not be possible to say
that ‘rotation’ and ‘one-third reservation for women’
are deleted as ‘exceptions’.
‘exceptions’ If the Parliament intended
that ‘rotation’ and ‘one-third reservation for women’
amongst reserved seats or amongst total number of seats
should not apply, it could have expressly said so in
clause (g) of Section 4 of PESA. We are of a considered
view that silence in Section 4(g) of PESA, regarding
‘rotation’ and ‘reservation for women’ does not amount
to ‘exception’ to the applicability of those, as
prescribed by Article 243-D, also to the Scheduled
Areas,
once Part IX is extended to the Scheduled Areas,
by PESA.
. The applicability of Part IX to the Scheduled
Areas in the modified form, seems to have been felt
necessary, because the areas declared as Scheduled
Areas, are the areas having majority of tribal
population and, therefore, the reservation applicable at
the election for Panchayats in Scheduled Area, should be
such that majority members to be elected would be of
Scheduled Tribes. It is also desired that all
Chairpersons of the Panchayats at all levels should
belong to Scheduled Tribe, because the Scheduled Area is
so declared by the President, after taking into
consideration that the majority population of the area
is tribal population.
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. Now we are required to consider and compare the
provisions of PESA on one hand and the provisions of
ZPPS Act and 1996 Rules on the other hand. Provisions
of ZPPS Act (Sections 12 (2)(b) and 58(1-B)(b) provide
reservation for Scheduled Castes, Scheduled Tribes as
per population ratio and reserved seats are to be
allotted to different constituencies by rotation. By
virtue of first proviso to said Sections of ZPPS Act,
where entire area of a Panchayat is scheduled area,
there is provision for reservation of not less than one
half of the total number of seats in favour of Scheduled
Tribes. For the reasons discussed hereinabove, we have
already held
that silence of Section 4(g) of PESA
regarding rotation policy and one third reservation for
women does not amount an exception. In other words, we
are unwilling to accept the silence as amounting to
elimination of applicability of those requirements as
contained in Article 243-D. The requirement of rotation
of reserved seats of Sections 12(2) and 58(1-B(b) cannot
be said to be conflicting with provisions of PESA.
. However, State Government by two proviso, has
categorised the Panchayats into two categories (1) where
entire Panchayat area is scheduled area and (2) where
Panchayat area is only partially scheduled area. The
second proviso was under strong exception by the
petitioners as also the Union. It lays down that where
entire area of the Panchayat is not a declared Scheduled
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area, or where only part of the territory of Panchayat
is Scheduled area, reservation of seats shall be as per
clause (b) i.e. as per population ratio and clause (b)
does not make any provision for “not less than one half
of the total number of seats as reservation for
Scheduled Tribes”. The second proviso, therefore, must
be said to be in conflict with first proviso to Section
4(g) of PESA. State legislation has created similar
distinction as regards reservation of offices of the
Chairpersons for the purpose of Panchayats having entire
area declared as scheduled area and Panchayats wherein
only part of the area is declared scheduled area. On
reference to
Sections 42 and 67 of the ZPPS Act, as
modified by amendment dated 3.1.1997, proviso to Section
42(4)(a) relating to President and Vice President of
Zilla Parishad and proviso to Section 67(5)(a) relating
to Chairman of Panchayat Samiti are also identically
worded and those can be reproduced hereinbelow in a
combined form;
“Provided that the office of the President of
Zilla Parishad (the Chairperson of a Panchayat
Samiti) comprising entirely the Scheduled Areas
shall be reserved only for the persons belonging
to the Scheduled Tribes.
Provided further that the office of the
President of Zilla Parishad (of the Chairperson
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(38)of a Panchayat Samiti) falling only partially in
the Scheduled Areas shall be reserved for the
persons belonging to the Scheduled Tribes in
accordance with the provisions of clause (a).”
and clauses (a) of both Sections prescribe reservation
of the offices of Presidents/ Chairpersons in accordance
with population ratio.
. It needs no elaborate discussion that second
proviso quoted hereinabove as applicable to the
reservation to the offices of Chairpersons of the
Panchayat containing only part area as Scheduled Area is
in conflict with second proviso to Section 4(g).
. Coming to 1996 Rules, Rules 3 and 7 enable State
Election Commission to determine the number of seats to
be reserved for Scheduled Castes/ Scheduled Tribes/
Other Backward Classes and women at Zilla Parishads and
Panchayat Samitis elections but as provided in Sections
12(2) and 58(1-B) respectively. Rules 4 and 8 are
relating to manner of allotment and rotation of seats
reserved for Scheduled Castes and Scheduled Tribes at
Zilla Parishads and Panchayat Samitis elections
respectively and these rules prescribe that seats
reserved for Scheduled Castes and Scheduled Tribes shall
be allotted to electoral divisions/ colleges in the
descending order begining with division/ college where
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population of such Scheduled Castes/ Scheduled Tribes is
highest. Sub-rule (2) requires that seats reserved for
Scheduled Castes and Scheduled Tribes to be rotated in
the subsequent general elections to electoral divisions/
colleges in which no seats were reserved in the previous
general elections. We are unable to see any conflict of
these two rules with the provisions of PESA, especially
so when we have already observed that PESA has not
excepted “rotation” of reserves seats.
. Proviso to sub-rule (2) of Rule 14 reads thus :
“Provided
ig that, with a view to securingrepresentation to the members of such castes or
tribes, in as many blocks as possible in the
districts, the seats may be rotated to electoral
divisions so however that not more than one seat
is reserved in any one block.”
(and it is monopoly of Rule 4, there is no such
provision to sub-rule (2) of Rule 8 for obvious reasons
that on collective reading of Sections 2(3), 5 and 56 of
ZPPS Act, one Panchayat Samiti is one block). By virtue
of this proviso, at the Zilla Parishad election, there
can be reservation of only one seat for Scheduled
Castes/ Scheduled Tribes per block/ Panchayat Samiti.
The proviso conflicts with the requirement of first
proviso to Section 4(g) of PESA. Not less than one half
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(50%) seats are required to be reserved for Scheduled
Tribes category, as per PESA and if only one seat is
allowed to be reserved per Panchayat Samiti at Zilla
Parishad elections for Scheduled Castes/ Scheduled
Tribes, even if there are only two seats per Panchayat
Samiti, reservation for Scheduled Tribe is bound to fall
below 50%.
. To sum up, the provisions of ZPPS Act and 1996
Rules are in conflict with Section 4(g) of PESA on
following points :
(i)
To the extent second proviso to Sections
12(2) (b) and 58(1-B)(b) do not provide
reservation for Scheduled Tribes of not less
than one half of the total number of seats in
the Panchayat. (Where entire area of the
Panchayat is not declared a scheduled area),
(ii) to the extent second proviso to Sections
42(4)(a) and 67(5)(a) do not provide reservation
of all the offices of Chairpersons only for
Scheduled Tribes (where entire area of Panchayat
is not declared scheduled area) and
(iii) proviso to Rule 4(2) of 1996 Rules
conflicts with the requirement of “reservation
of not less than one half of the total number of
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(41)seats for Scheduled Tribes”.
10. In order to find out the reasons for conflict or
legal battle, we may hypothetically consider three types
of Panchayats;
(i). Where entire area of Panchayat is free
from Presidential Declaration (No part of
Panchayat Area is declared as Scheduled Area).
(ii). Where entire Panchayat Area is declared
Scheduled Area.
(iii). Where Panchayat Area is partially
declared as Scheduled Area.
. In case of first type of Panchayat, Part IX of
the Constitution applies by itself and PESA would not be
in the picture. In case of second type of Panchayat,
where entire area of Panchayat is declared as Scheduled
Area, only PESA would operate and provisions of State
legislation (ZPPS Act), if in conflict with PESA, would
be inapplicable. However, in the discussion
hereinabove, we have arrived at a conclusion that the
provisions of ZPPS Act, as applicable to Panchayat where
entire area is declared as Scheduled Area, do not
conflict with PESA.
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. The problem arises when the authorities are
required to conduct the elections of the Panchayats
wherein part area is declared as Scheduled Area and part
area is not so declared. Admittedly, Dhule Zilla
Parishad and Nandurbar Zilla Parishad, which are the
Panchayats of the highest level, are such Panchayats
wherein entire area is not declared to be Scheduled
area. In other words, only part area of these highest
Panchayats is declared Scheduled Area. In fact, on
reference to Scheduled Areas (Maharashtra) Order, 1985,
following position emerges, so far as Panchayats at
district levels (Zilla Parishad) and Panchayats at
Taluka level (Panchayat Samiti) are concerned.
——————————————————–
Dhule Zilla Parishad – Part area-Scheduled Area.
Dhule Panchayat Samiti. - No Scheduled Area
Sindhkheda - No Scheduled Area
Sakri - Partly Scheduled Area
Shirpur - Partly Scheduled Area
——————————————————-
Nandurbar Zilla Parishad – Part area Scheduled Area.
Nandurbar Panchayt Samiti – Partly Scheduled Area.
Shahada - Partly Scheduled Area.
Nawapur - Entire Scheduled Area.
Taloda - Entire Scheduled Area.
Akkalkuwa - Entire Scheduled Area.
Akrani - Entire Scheduled Area.
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——————————————————–
. While amending Sections 12 and 58, as also 42
and 67 of ZPPS Act with effect from 3.1.1997, the State
of Maharashtra seems to have taken a note of the fact
that as a result of declaration of Scheduled area, there
are Panchayats in the State, wherein there is a
Scheduled Area as their parts, although entire Panchayat
area is not declared as Scheduled Area. On reference to
Section 4(g) of PESA, which is the only part of the Act
as applicable to elections of Panchayats and
reservations at such elections, it is evident that there
is no express
igindication of cognizance of such
eventuality i.e. existence of Panchayats, area of which
is partly Scheduled Area and partly not so declared.
However, opening part of clause (g) “… in the
Scheduled Areas at every panchayat…” has some
indication of Scheduled Area being only part of the
Panchayat and for which, the modifications to Part IX of
the Constitution in its application to the Scheduled
Area, are being adopted by Section 4(g) of PESA and more
particularly by two provisos to the said clause (g) of
Sectiion 4. If this is taken into account, there is
reason to feel that while adopting part IX in its
application to the Scheduled Area in the modified form,
the Central legislation, to some extent; controls
reservation of seats as well as offices of Chairpersons
which may not be strictly within Scheduled Area, e.g.
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in Panchayat where population of Scheduled Tribe is 30
per cent, by requiring not less than one-half of the
total number of seats for Scheduled Tribes, 20 per cent
seats would be required to be reserved in an area not so
declared. “All the seats of chairpersons of Panchayats”
referred to in second proviso to Section 4(g) would not
fall in Scheduled Area, if Scheduled Area is only
part/small part of entire area of Panchayat. Thus, the
way the second proviso to Section 12(2)(b) and Section
58 (1-B)(b), as also 42 (4) (a) and 67 (5) (a) of ZPPS
Act, seem to treat part of the area of a Panchayat
declared as Scheduled Area, at par with area not so
declared, the
Central legislation also seems to be
invading in the area not declared as Scheduled Area
while extending applicability of part IX of the
Constitution to Scheduled Area, in its modified form by
Section 4(g) of PESA.
11. Naturally, the question that is required to be
considered wold be, what happens when PESA and ZPPS Act
read with 1996 rules conflict. Upon reading Article
243-D (4)(b), it is evident that only the Parliament has
legislative competence to provide application of part IX
with exceptions and modifications as may be specified in
the law providing application of part IX to the
Scheduled Areas. It must be said that clause (4) of
Article 243-M is very strongly worded, since it opens
with non-obstante clause “Notwithstanding in this
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Constitution.” and sub clause (b) ends with “…and no
such law shall be deemed to be amendment of this
Constitution for the purpose of Article 368.”.
368." It is
felt that the manner in which clause (4) of Article
243-M is worded, it empowers the Parliament to make a
law which may even be in conflict with provisions of
part IX, while extending applicability of IX part to the
Scheduled Area and yet such provisions are not to be
deemed an amendment of the Constitution for the purpose
of Article 368. The State legislature lacks legislative
competence, so far as extension of IX part to Scheduled
area is concerned and, therefore, the provisions of
State legislation,
ig which conflict with PESA, would be
inapplicable.
. Advocate Shri S.T.Shelke for the State Election
Commission referred to paragraph 5 of Fifth Schedule and
desired us to examine whether the amendments to the
provisions of ZPPS Act can be said to have been effected
in exercise of powers conferred by said paragraph 5 of
Fifth Schedule. The said provision reads thus;
“. Law applicable to Scheduled Areas:-
(1). Notwithstanding anything in this
Constitution, the Governor may ‘by public
notification’ direct that any particular Act of
Parliament or of the Legislature of the State
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(46)shall not apply to a Scheduled Area or any part
thereof in the State or shall apply to a
Scheduled Area or any part thereof in the State
subject to such exceptions and modifications as
he may specify in the notification and any
direction given under this sub-paragraph may be
given so as to have retrospective effect.”
. Governors of State thus seem to have been
empowered to obstruct or resume the application of any
Act of Parliament, or that of the State legislature to a
Scheduled Area or any part thereof in the State and
subject to
such exceptions or modifications as he may
specify. Governor is required to do so “by a public
notification’ and not with the aid of State legislation.
Therefore, it may not be correct to say that amendments
to ZPPS Act are effected by Governor of the State in
exercise of his powers conferred by paragraph 5 of Fifth
Schedule, regarding “administration and control of
Scheduled Areas and Scheduled Tribes.”
. It was not submitted on behalf of the State that
the amendments to Sections 12/58 and 42/67 of ZPPS Act
were in exercise of powers conferred upon Governor by
paragraph 5 of the Fifth Schedule of the Constitution,
nor it was submitted that any such “public notification”
is issued by the Governor of the Maharashtra. In this
context, the statement of objects and reasons in
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promulgating Maharashtra Zilla Parishad and Panchayat
Samiti (Extension to the Scheduled Areas and Amendment)
Ordinance, 1997 ( No.I of 1997) and more particularly
contents in paragraphs 2 and 3, can usefully be referred
to.
“2. In exercise of the powers conferred by
the article 243-M(4)(b) of the Constitution,
Parliament has passed, the provisions of the
Panchayats (Extension to the Scheduled Areas)
Act 1996 (Act No. 40 of 1996), providing for
extension of the provisions of the said Part IX
to the
ig Scheduled Areas, subject to theexceptions and modifications as provided in
Section 4 of the said Act. Section 4 of the
said Act, inter alia, provides for the
reservation of seats in the Scheduled Areas in
any Panchayat in proportion to the population of
the communities in that Panchayat for whom
reservation is sought to be given under the said
Part IX, provided that, the reservation for the
Scheduled Tribes shall not be less than one half
of the total number of seats, and also that, all
seats of chairpersons of Panchayats at all
levels shall be reserved for the Scheduled
Tribes.”
“3. The general elections to the Zilla
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(48)Parishads and Panchayat Samitis are scheduled to
be held sometime in the month of February or
March 1997. It is, therefore, necessary to
carry out suitable amendments, with immediate
effect in the Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961, so as to give
effect to the said provisions of Section 4 of
the said Act made by Parliament.”
. Thus, Ordinance and subsequent amendments to
ZPPS Act were aimed at implementing PESA and not
prohibiting its applicability.
. Learned standing counsel for Union referred to
Article 254(1) of the Constituion, for propounding that
PESA being legislation of the Parliament, would prevail
over provisions of ZPPS Act and 1996 Rules and to the
extent the provisions of State Act and Rules are
repugnant to the provisions of PESA, shall be void.
With due respect, reference to Article 254 (1) is not
necessary. The said Article deals with the legislation
enacted by the Parliament and the State legislature in
their legislative competence, flowing from the lists as
contained in the Seventh Schedule (Union list,
Concurrent list and State list). Part IX of the
Constitution having come into force only in the year
1993, is not included in either of the three lists. The
legislative competence in favour of the Parliament
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arises by virtue of Article 243-M(4)(b, which indicates
that only Parliament can legislate for extending the
provisions of Part IX of the Constitution, with
exceptions and modifications, to the Scheduled Area.
Naturally, the provisions of State legislation and Rules
controlling allotment of seats and reservations, as also
reservations for offices of chairpersons, so far as
Scheduled Area is concerned, will have to be deemed to
be void, in the light of existence of Central
legislation-PESA in the field. Although we felt that
there may be occasions when compliance of first proviso
to Section 4(g) may be invading upon the area not
declared
as Scheduled Area, by reservation of seats for
Scheduled Tribes in that area. Similarly, reservation
of all offices of the chairpersons of the Panchayats at
all level for Scheduled Tribes as prescribed by second
proviso to Section 4(g) also invades in the area not
declared as Scheduled Area. However, since, so far, no
such legal challenge is successfully set up against
those two provisos to Section 4(g) of PESA, those will
have to be implemented. Moreover, legislations
providing reservation for SC/ST, which are
Constitutional reservations, need to be interpreted in
favour of the reservation and not against the
reservations.
12. The contention of the State that it has fully
implemented the provisions of PESA by suitable
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(50)
amendments to ZPPS Act, is not sustainable in view of
the conclusions regarding provisions of ZPPS Act being
in conflict with Section 4(g) of PESA. if the second
proviso referred from 4 sections of ZPPS Act as
applicable to the Panchayats, wherein part area is
scheduled area are to be ignored being repugnant to
PESA. The first proviso to the extent they refer to
Panchayats where entire area is declared as scheduled
area, the propriety of existence of word “entire” is
required to be re-examined, in view of the fact that
PESA does not specifically refer by distinction amongst
the Panchayats where entire area is declared as
Scheduled Area and Panchayats where only part of area is
declared as Scheduled Area.
. It, therefore, appears desirable that there is
dialogue between State and the Union to resolve this
discrepancy. After all the Courts cannot direct either
Government to legislate in a particular manner.
. In para 3 of reply filed by Shri Rajiv Pande on
behalf of State Election Commission, it is contended
that State Election Commission is not responsible for
implementing provisions of PESA. We are afraid once
Part IX is made applicable also to the Scheduled Areas,
with exceptions and modifications, by PESA, such an
approach is not permissible to the State Election
Commission in view of Article 243-K(1), which vests the
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(51)
superintendence, direction and control of the
preparation of electoral roll for, and on the conduct of
all elections to the Panchayats in State Election
Commission. The provision of PESA to the extent
applicable to the elections of Panchayats are required
to be implemented by the Election Commission in the
field.
. Senior Counsel Shri P.M. Shah submitted that in
order to resolve the dispute, the possibility may be
examined if Panchayats wherein part area is declared
Scheduled Area can be considered for elections as two
zones, Scheduled
ig Area being governed by PESA and the
remaining area by State Legislation. In the discussion
hereinabove, we have taken a note that PESA though does
not expressly distinguish between Panchayats having
entire area as scheduled area and Panchayats having part
area as Scheduled Area, opening part of clause (g)
indicates awareness about existence of Panchayats
wherein only part area is Scheduled Area. Yet is
prescribes reservation of more than 50% seats of the
total number of seats in the Panchayat area for
Scheduled Tribes, as also reservation of all offices of
Chairpersons for Scheduled Tribes. The invasion that
may occur in the area not declared Scheduled area, to
some extent while implementing Section 4(g) of PESA may
not permit us to accede to the proposition of learned
Senior Counsel. Moreover, Sections 6 and 56 of ZPPS Act
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(52)
require establishment of a Zilla Parishad for every
district and Panchayat Samiti for every block.
Constitution of districts and blocks is the function of
the State Government by virtue of Sections 4 and 5 of
ZPPS Act. The Court, therefore, cannot consider
issuance of direction to treat Scheduled Area and other
areas as separate zones thereby practically creating two
Zilla Parishads or two Panchayat Samitis in the same
district/ block.
13. Realising that if this Court upholds the
contentions of the petitioners, it may issue directions
requiring the
ig State Election Commission to bring the
reservations at the ensuing elections in harmony with
provisions of PESA, both counsel for intervenors have
relied upon Article 243-O of the Constitution of India
and claimed that it is too late to correct the
irregularity/ illegality. They have, therefore, prayed
that the directions that may be issued by this Court may
be ordered to be implemented at the next election.
Article 243-O reads thus :
“243-O. Bar to interference by courts in
electoral matters.- Notwithstanding anything in
this Constitution.-
(a). The validity of any law relating to the
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(53)delimitation of constituencies or the allotment
of seats to such constituencies, made or
purporting to be made under Article 243-K, shall
not be called in question in any court.”
. The discussion of reasons hereinabove, clearly
indicates that although petitioners have come with a
prayer for directions to implement PESA, for the purpose
they have challenged applicability of certain provisions
of ZPPS Act, relating to allotment of seats
(reservation). Impliedly, they have also challenged
allotment of seats, although the grievance can be said
to be of less number of seats being awarded to Scheduled
Tribe category, than required under PESA.
. Advocate Shri Shelke for the Election Commission
has submitted that the State Election Commissioin is
likely to declare election programme on 10.11.2008. We,
therefore, can infer that exercise of delimitation of
the constituencies and allotment of seats is already in
progress, nearing completion or may be even completed.
. Although both the learned counsel for
intervenors-respondents have challenged maintainability
of the writ petition, such challenge is mainly set up,
by relying upon clause (b) of Article 243-O and not by
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(54)
relying upon the nature of challenge described by us
hereinabove. It was contended by both of them that it
is too late for this court to interfere and, therefore,
directions, if any, may be ordered to be complied with,
only for the next election. Interference of the court
in the election process was thus opposed.
. Advocate Shri Patil for Respondent No.8 has
placed reliance upon judgment of the Hon’ble the Supreme
Court in the matter of Boddula Krishnaiah and another
versus State Election Commissioner, Andhra Pradesh, 1996
(3) SCC 416. Ratio laid down by the judgment is summed
up in the head note titled as “important point”.
” Once an election process has been set in
motion, though the High Court may entertain or
may have already entertained a writ petition, it
would not be justified in interfering with
election process giving direction to state
(stay) the proceedings or to conduct the
election process a fresh, in particular when
election had already been held, in which voters
were allegedly prevented to exercise their
franchise and remedy could be prosecuted under
the Acts and Rules.”
. In the reported matter, the election was held on
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(55)
27.6.1995 and although High Court, by interim order
dated 26.6.1995, directed to allow 94 persons to
participate in the election, on the date of poll they
could not exercise their franchise. By interim order
dated 6.7.1995, direction was issued by High Court not
to declare result of election of Gram Panchayat, in a
writ petition by some of them, seeking directions to
permit them to exercise their franchise.
. The other reported judgment [2000 (8) SCC 216]
relied upon by learned Advocate Shri P.S. Patil, has
considered the leading cases on the subject, regarding
interference by
ig the High Courts in electoral mattes,
begining from N.P.Ponnuswami vs. The Returning Officer,
Namakkal (AIR 1952 SC 64) to C.Subrahmanyam vs.
K.Ramanjaneyullu and others 1998 (8) SCC 703.
703 We intend
to reproduce certain observations from this reported
judgment in the matter of Election Commission of India
through Secretary vs. Ashok Kumar and Others [2000 (8)
SCC 216].
216] In this matter, interim order passed by the
High Court in exercise of its writ jurisdiction under
Article 226 of the Constitution, whereby it had stayed
the notification by the Election Commission of India,
containing directions as to the manner of counting votes
and making further directions of its own on the subject,
was stayed by the Supreme Court. By the time the matter
came up for final hearing before the Supreme Court, the
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(56)
counting had taken place in accordance with the
notification dated 28.9.1999 that was challenged before
the High Court and the appeals had become infructuous.
However, at the insistence of the learned counsel for
appellants, who submitted that the issue arising for
decision in the appeals was of wide significance,
inasmuch as several writ petitions are filed before the
High Court, seeking interim directions interfering with
the election proceeds and, therefore, it would be in
public interest, if the court may pronounce upon the
merits of the issue arising for decision in the appeals;
the Hon'ble the Supreme Court proceeded to hear and
decide the
appeals on merits. Naturally, the Hon'ble
Apex Court was considering the issue regarding
jurisdiction of the High Court to entertain petitions
under Article 226 of the Constitution and to issue
interim directions after commencement of the electoral
process.
. No doubt, it was a matter wherein objections to
passing of orders by the High Court was raised by
relying upon Article 329 of the Constitution. However,
Article 243-O is pari-materia with Article 329 and,
therefore, law laid down by the Hon'ble Apex Court in
the matter relied upon by learned counsel for the
intervenors-respondents, would be squarely applicable to
the matter at hands.
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(57)
. The observations in the matters of
N.P.Ponnuswami and Mohinder Singh Gill, are considered
and dealt with in paras 18 to 21 of the reported
judgment. Both earlier decisions rendered were the
decisions by the Constitution Bench.
“. The plenary power of Article 329 has
been stated by the Constitution Bench to be
founded on two principles; (1) the peremptory
urgency of prompt engineering of the whole
election process without intermediate
interruptions by way of legal proceedings
challenging the steps and stages in between the
commencement and the conclusions; (2) the
provision of a special jurisdiction which can be
invoked by an aggrieved party at the end of the
election excludes other form, the right and
remedy being creatures of statutes and
controlled by the Constitution.”
. Following observations from Mohinder Singh
Gill’s case are reproduced.
“. Having regard to the important functions
which the legislatures have to perform in
democratic countries, it has always been
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(58)recognized to be a matter of first importance
that elections should be concluded as early as
possible according to time schedule and all
controversial matters and all disputes arising
out of elections should be postponed till after
the elections are over, so that the election
proceedings may not be unduly retarded or
protracted. ”
(2). In conformity with this principle, the
scheme of the election law in this country, as
well as in England, is that no significance
should
ig be attached to anything which does notaffect the election and if any irregularities
are committed while it is in progress and they
belong to the category or class which under the
law by which the elections are governed, would
have the effect of vitiating the “election” and
enable the person affected to call it in
question, they should be brought up before a
special tribunal by means of an election
petition and not be made the subject to a
dispute before any court while the election is
in progress.”
. Following are the observations in paragraph 20;
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(59)
“. A Reading of Mohinder Singh Gill’s case
points out that there may be a few controversies
which may not attract the wrath of Article 329
(b). To wit; (i) power vested in a functionary
like the Election Commission is a trust and in
view of the same having been vested in high
functionary can be expected to be discharged
reasonably, with objectivity and independence
and in accordance with law. The possibility,
however, cannot be ruled out where the
repository of power may act in breach of law or
arbitrarily or mala fide. (ii) A dispute raised
may not amount to calling in question an
election, if it subserves the progress of the
election and facilitates the completion of
election.”
. In paragraph 21 of the judgment, the court has
observed third category of cases, which may call the
court to interfere in the electoral process and we
quote;
". So also there may be cases where the
relief sought for may not interfere or
intermeddle with the process of the election but
the jurisdiction of the court is sought to be
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(60)
invoked for correcting the process of election
taking care of such aberrations as can be taken
care of only at that moment failing which the
flowing stream of election process may either
stop or break its bounds and spill over. The
relief sought for is to let the election process
proceed in conformity with law and facts and
circumstances be such that the wrong done shall
not be undone after the result of the election
has been announced, subject to overriding
consideration that the court’s intervention
shall not interrupt delay or postpone the
ongoing election proceedings.”
. The court has summed up its conclusions in
paragraph 32 of the judgment and it is evident from the
conclusions that interference by the court should be an
exception, rule being invoking of judicial remedy to be
postponed till after the completion of the proceedings
in election. The term “election” is required to be
widely interpreted so as to include all steps and entire
proceedings from the date of notification of election
till declaration of result. However, we may reproduce
conclusions 2 to 4 verbatim.
“(2). Any decision sought and rendered will
not amount to “calling in question an election”
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(61)
if it subserves the process of the election and
facilitates the completion of the election.
Anything done towards completing or in
furtherance of the election proceedings cannot
be described as questioning the election.
(3). Subject to above, the action taken or
orders issued by Election Commission are open to
judicial review on the well settled parameters
which enable judicial review of decision of
statutory bodies, such as, on a case of mala
fide or arbitrary exercise of powers being made
out or
the statutory body being shown to have
acted in breach of law.
(4). Without interrupting, obstructing and
delaying the progress of the election
proceedings, judicial intervention is available
if assistance of the court has been sought for
merely to correct or smoothen the progress of
election proceedings, to remove the obstacles
therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed
or rendered irretrievable by the time the
results are declared and stage is set for
invoking the jurisdiction of the court.”
”
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(62)
. In the matter at hands, as can be seen from the
discussion of facts and law hereinabove, the petitioners
are aggrieved by non implementation of provisions of
PESA, which give distinct advantage to the Scheduled
Tribes, when Panchayat is one consisting of Scheduled
Area. We have already observed earlier that,
implementation of Section 4(g) of PESA would require
reservation of not less than one-half of total number of
seats in the Panchayat and also of all the offices of
Chairpersons of the Panchayats for Scheduled Tribe. If
the election goes ahead without ensuring such
reservation, entire election proceedings will be
illegal, viewed
ig in the light of provisions of PESA,
which is a special legislation enacted by the
Parliament, extending provisions of Part IX of the
Constitution with modifications, to the Scheduled Area.
The seats, which ought to be reserved for Scheduled
Tribes, if not reserved and election proceedings are
allowed to be concluded, the situation may be
irreversible, except by fresh election. The submission
of learned Counsel for the State Election Commission,
confirms that the actual election programme has not
rolled in motion, which is likely to be declared on
10.11.2008. It is also clear that polling is
tentatively scheduled for 30.11.2008 and the term of
existing Zilla Parishads and Panchayat Samitis ends
sometime in the last week of December 2008. We,
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(63)
therefore, feel that there is time margin available for
rectifying the legal lacuna. There are at least ten
more days from the date of delivery of this judgment,
during which the State Election Commission can act to
remove the defect and there also appears some time
margin (between 30.11.2008 to 27.12.2008) to postpone
the election programme, by few days and yet complete it
before expiry of tenure of present Panchayats. We,
therefore, feel justified in entertaining the writ
petition (which was filed on 21.7.2008) and issue
directions, in view of conclusion 4 reproduced
hereinabove, from the case relied upon by learned
Counsel for intervenors-Respondents.
. We have gone through the judgment rendered by
earlier Division Benches in Writ Petition Nos. 5386 of
2006 and group of Writ Petitions, including Writ
Petition No.6389 of 2006. We do not think that we are
recording anything in conflict with those judgments. In
fact, in both those judgments, election for Zilla
Parishad, Aurangabad, was the subject-matter. The court
thus, was not required to consider the provisions of
PESA and rotation policy, which was sought to be
implemented by the directions of the court, is upheld by
us, as available to be implemented by the State Election
Commission, in view of silence of PESA on that aspect.
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(64)
14. Our conclusions based on the reasons discussed
hereinabove, can be summarised as follows;
(1). Second proviso to each of Sections
12(2)(b) and 58 (1-B) (b) of ZPPS Act are in
conflict with first proviso to Section 4(g) of
PESA.
(2). Second proviso to each of Sections
42(4)(a) and 67(5)(a) of ZPPS Act are in
conflict with the second proviso to Section 4(g)
of PESA.
(3). Proviso to Rule 4 (2) of 1996 Rules is
also in conflict with first proviso to Section
4(g) of PESA.
(4). It is desirable for Law Departments of
State and Union to have a dialogue to remove the
discrepancy.
(5). Till the time discrepancy is removed,
provisions of ZPPS Act / 1996 Rules to the
extent of repugnancy with PESA, as indicated
hereinabove, will have to be ignored for
practical application.
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(65)
(6). It is not possible to treat Scheduled
Area and other part from the same Panchayat, as
separate zones, controlled by PESA and ZPPS Act,
for the purpose of elections to Panchayats.
(7). State Election Commission cannot deny
responsibility of implementation of PESA in the
field.
. In view of conclusions hereinabove, the writ
petition will
have to be and is accordingly allowed.
. Rule, which was made returnable forthwith by
consent of the parties at the commencement of the
arguments, is made absolute, by directing Respondent
nos.1 and 2 to implement the provisions of PESA for the
elections of Panchayats at all levels in the districts
of Dhule and Nandurbar.
(N.D.DESHPANDE, J.) (N.V.DABHOLKAR,J.)
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(66)
pnd/uniplex/
wp4860.08
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