{"id":44624,"date":"2008-10-31T00:00:00","date_gmt":"2008-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008"},"modified":"2016-10-23T01:53:40","modified_gmt":"2016-10-22T20:23:40","slug":"vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","title":{"rendered":"Vikramsing vs The State Of Maharashtra on 31 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vikramsing vs The State Of Maharashtra on 31 October, 2008<\/div>\n
Bench: N.V. Dabholkar, N.D. Deshpande<\/div>\n
                       (1)\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      BENCH AT AURANGABAD\n\n              Writ Petition No. 4860 of 2008\n\n\n\n\n                                                                  \n    01.    Vikramsing s\/o Jalamsing Walvi      ]\n           age 43 years,occup.Agriculture      ]\n           R\/of Esai nagr, Post Dhanora,       ]\n\n\n\n\n                                          \n           Taluka & District Nandurbar.        ]\n\n    02.    Uttam s\/o Nimbha Deshmukh      ]\n           age 32 years, occup.Agriculture]\n           R\/o Mohagaon, Post Shendwad,   ]\n\n\n\n\n                                         \n           Taluka Sakri, Dist. Dhule.     ]         Petitioners\n\n                    versus\n\n    01.    The State of Maharashtra,           ]\n           through Secretary,                  ]\n\n\n\n\n                              \n           Rural Development Department,       ]\n           Mantralaya, Mumbai.                 ]\n\n    02.\n                   \n           The State Electioin Commission ]\n           Maharashtra State, Mumbai      ]\n                  \n    04.    Union of India,                     ]\n           through its Secretaray,             ]\n           Panchat Raj and Development         ]\n           of North Eastern Region,            ]\n           New Delhi - 110001                  ]\n      \n\n\n    04.    The Secretary,                      ]\n           Tribal Development Department,      ]\n   \n\n\n\n           Government of India,                ]\n           New Delhi.                          ]\n\n    05.    The Director,\n           National Commission for             ]\n\n\n\n\n\n           Scheduled Tribes, Room No.309,      ]\n           Nirman Sadan, C.G.O. Building,      ]\n           52-A, Arera Hills,                  ]\n           Bhopal - 462011 (M.P.)              ]    Respondents\n\n                     AND\n\n\n\n\n\n    06.    Suresh s\/o Damu Bhambre,       ]\n           Age 50 years, occup.Agriculture]\n           r\/o Malpur, Taluka Sakri,      ]\n           District Dhule.                ]\n\n    07.    Tatya s\/o Hari Thakur (Bhil)        ]\n           age 50 years, occup. Labour         ]    Intervenors\n           and Agriculture, r\/o Surpan         ]    Respondents\n\n\n\n\n                                          ::: Downloaded on - 09\/06\/2013 14:02:14 :::\n                                     (2)\n\n                 Taluka Sakri, Dist. Dhule.                ]    No. 6 and 7.\n\n\n\n\n    08.          Rahul s\/o Vishvasrao Randhe,              ]\n                 age 30 years, occup. social               ] Intervenor\n\n\n\n\n                                                                              \n                 work, r\/o Boradi, Tq.Shirpur,             ] Resp. No.8\n                 District Dhule).\n\n\n\n\n                                                      \n    -----------------------------------------------------\n    Shri P.M. Shah,     Senior   Counsel,    instructed   by\n    Shri P.D. Bachate, Advocate, for the Petitioners.\n    Shri Umakant Patil, A.G.P.      for Respondent No.    1.\n    Shri S.T.Shelke, Advocate, for      Respondent No.    2.\n\n\n\n\n                                                     \n    Shri N.S.Chaudhary,Adv.for Respondents No. 3 to 5.\n    Shri V.D.Hon,Advocate, for Respondents Nos. 6 & 7.\n    Shri P.S.Patil, Advocate,     for   Respondent    No. 8.\n    -----------------------------------------------------\n\n\n\n\n                                          \n             Coram: N.V. Dabholkar & N.D. Deshpande, JJ.\n<\/pre>\n
             Judgment reserved on : 24th October 2008.\n<\/p>\n
             Judgment pronounced on: 31st October 2008.\n<\/p>\n
    Judgment : (Per: Dabholkar, J.)<\/p>\n
    01.          As    described in petition paragraph 2 and prayer<\/p>\n
    clause       (B), the Petitioners have approached this                      court<\/p>\n
    for      a    relief       of   writ   of   mandamus       or    any         other<\/p>\n
    appropriate writ, order or direction in the like nature,<\/p>\n
    directing         Respondents-authorities and more particularly<\/p>\n
    Respondent No.2-State Election Commission to give effect<\/p>\n
    to    and     strictly      comply     with The    Provisions           of     the<\/p>\n
    Panchayats         (Extension to the Scheduled Areas) Act, 1996<\/p>\n
    (henceforth         referred      to   as   “PESA” for        the      sake      of<\/p>\n
    brevity),         during    ensuing elections of Zilla               Parishads<\/p>\n
    and Panchayat Samitis, pertaining to Dhule and Nandurbar<\/p>\n
    Districts.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                   (3)<\/span><\/p>\n
    02.        PESA,       an Act of Parliament, received assent                           of<\/p>\n
    the President, on 24th December 1996 and the objects and<\/p>\n
    reasons       for      enacting      the     same can        be     read      in     the<\/p>\n
    preamble which runs thus;\n<\/p>\n
               “.           An    Act to provide for the extension of<\/p>\n
               the       provisions      of Part IX of the                Constitution<\/p>\n
               relating to Panchayats to the Scheduled Areas.”\n<\/p><\/blockquote>\n
    Part     IX     was     inserted      in     the   Constitution,              by     the<\/p>\n
    Constitution          (Seventy Third amendment) Act 1992,                         which<\/p>\n
    came     into        force with effect from 24th April 1993                         vide<\/p>\n
    Notification No.S.O.267(E).\n<\/p>\n
    .          Observing         that the Panchayati Raj                  Institutions<\/p>\n
    had     not     been     able to acquire status               and      dignity         of<\/p>\n
    viable and responsive people’s bodies due to a number of<\/p>\n
    reasons,        although       Article     40      of      the        Constitution<\/p>\n
    enshrined one of the Directive Principles that the State<\/p>\n
    shall     take steps to organize the village Panchayats and<\/p>\n
    endow     them        with    such powers and authority as                    may      be<\/p>\n
    necessary        to     enable them to function as units of                         self<\/p>\n
    government,          it was considered to be imperative need                           to<\/p>\n
    enshrine in the Constitution certain basic and essential<\/p>\n
    features        of     Panchayati      Raj      Institutions             to     impart<\/p>\n
    certainty,           continuity and strength to them, the Seventy<\/p>\n
    Third     amendment          was    inserted       to      achieve         following<\/p>\n
    objectives.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                        (4)<\/span><\/p>\n
      “Accordingly,it            was proposed to add a new part,<\/p>\n
      relating       to     Panchayats in the                Constitution,to<\/p>\n
      provide     for among other things, Gram Sabha in a<\/p>\n
      village     or      group of villages, constitution                           of<\/p>\n
      Panchayats at village and other level or levels;\n<\/p>\n
      direct     elections to all seats in Panchayats                               at<\/p>\n
      the    village and intermediate level, if any, and<\/p>\n
      to     the offices of Chairpersons of Panchayats at<\/p>\n
      such     levels;          reservation           of     seats        for      the<\/p>\n
      Scheduled        Castes          and      Scheduled           Tribes          in<\/p>\n
      proportion to their population for membership of<\/p>\n
      Panchayats
\n                 ig       and        office     of        Chairpersons              in<\/p>\n
      Panchayats       at       each level, reservation                      of    not<\/p>\n
      less     than    one-third             of the seats           for       women;\n<\/p>\n
      fixing    tenure          of     5 years for           Panchayats            and<\/p>\n
      holding elections within a period of 6 months in<\/p>\n
      the    event     of       supersession of              any       Panchayat,<\/p>\n
      disqualifications              for membership of Panchayats;\n<\/p>\n
      devolution       by       the State Legislature of                     powers<\/p>\n
      and    responsibilities              upon the Panchayats                    with<\/p>\n
      respect to the preparation of plans for economic<\/p>\n
      development         and        social    justice           and      for      the<\/p>\n
      implementation         of        development schemes;                    sound<\/p>\n
      finance    of the panchayats by securing from                                the<\/p>\n
      Consolidated          Fund        of    the         State,        as        also<\/p>\n
      assignment          to,         or      appropriation             by,        the<\/p>\n
      Panchayats       of the revenues of designated taxes,<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                               (5)<\/span><\/p>\n
              duties, tolls and fees;               setting up of a Finance<\/p>\n
              Commissioin      within        one     year of          the      proposed<\/p>\n
              amendment and thereafter every 5 years to review<\/p>\n
              the     financial position of Panchayats,                        auditing<\/p>\n
              of    accounts of the Panchayats, powers of                           State<\/p>\n
              Legislature      to make provisions with respect                           to<\/p>\n
              the      elections        to           Panchayat             under       the<\/p>\n
              superintendence,         direction           and control of              the<\/p>\n
              chief        electoral         officer           of       the        State;\n<\/p>\n
              application      of the provisions of the said                          Part<\/p>\n
              to    Union territories;             excluding certain States<\/p>\n
              and areas from the application of the provisions<\/p>\n
              of<\/p>\n
                    the said Part;         continuance of existing laws<\/p>\n
              and      Panchayats       until       one        year         from       the<\/p>\n
              commencement      of     the         proposed         amendment          and<\/p>\n
              barring      interference        by     courts          in     electoral<\/p>\n
              matters relating to Panchayats.”\n<\/p>\n
    .         We    have underlined some portion above, for                            the<\/p>\n
    purpose    of emphasis, since we believe that the                           dispute<\/p>\n
    raised in the writ petition revolves around the issue of<\/p>\n
    reservation       of    seats    for       the     Scheduled            Caste      and<\/p>\n
    Scheduled Tribes.\n<\/p>\n
    .         Article      243(d)      of the Constitution,                  which       is<\/p>\n
    interpretation clause in Part IX, defines “Panchayat” as<\/p>\n
    to mean an institution (by whatever name called) of self<\/p>\n
    government constituted under Article 243-B for the rural<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                 (6)<\/span><\/p>\n
    areas.       Article     243-B       contemplates       constitution             of<\/p>\n
    Panchayats        at   the village, intermediate              and      district<\/p>\n
    levels,      in accordance with the provisions of this part.\n<\/p>\n
    The Gram Panchayat, Panchayat Samiti and Zilla Parishads<\/p>\n
    are      thus       “Panchayats”        constituted           at       village,<\/p>\n
    intermediate and district level, in the State.\n<\/p>\n
    .         We      may usefully reproduce part of Article 243-M<\/p>\n
    and   244,        which are required to be considered                  for     the<\/p>\n
    purpose      of    resolution       of dispute raised by             the      writ<\/p>\n
    petitioners.\n<\/p>\n
              “243-M:- Part not to apply to certain areas.\n<\/p><\/blockquote>\n
              (1)      Nothing     in   this part shall apply               to     the<\/p>\n
              Scheduled         Areas   referred to in clause (1)                  and<\/p>\n
              the      tribal     areas referred to in clause (2)                    of<\/p>\n
              Article 244.\n<\/p><\/blockquote>\n
              (2)          Nothing in this part shall apply to :-\n<\/p><\/blockquote>\n
              xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n
              (3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n
              (3A) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n
              (4).         Notwithstanding        anything               in       this<\/p>\n
              Constitution:-\n<\/p><\/blockquote>\n
              (a)          xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n<\/blockquote>\n
              (b)          Parliament     may,   by        law,      extend        the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                      (7)<\/span><\/p>\n
                 provisions          of this part to the Scheduled                     Areas<\/p>\n
                 and     the Tribal Areas referred to in clause (1),<\/p>\n
                 subject           to such exceptions and modifications as<\/p>\n
                 may     be        specified in such law, and no such                     law<\/p>\n
                 shall        be     deemed      to be an     amendment           of     this<\/p>\n
                 Constitution for the purposes of Article 368.                                ”\n<\/p><\/blockquote>\n
    .            Thus,        it is evident that applicability of                        part<\/p>\n
    IX is prohibited to the Scheduled Areas and Tribal Areas<\/p>\n
    referred       to     in        clauses (1) and         (2)    respectively             of<\/p>\n
    Article       244.         But,       by virtue of       clause        (4)(b),        the<\/p>\n
    Parliament           is        empowered,       by    law,     to      extend         the<\/p>\n
    provisions          of this part to the Scheduled Areas and                           the<\/p>\n
    Tribal        Areas,
\n                               ig   subject       to     such      exceptions             and<\/p>\n
    modifications             as may be specified in such law.                     As     can<\/p>\n
    be     seen    from preamble of PESA quoted hereinabove,                              the<\/p>\n
    said     Act is enacted to extend the provisions of part IX<\/p>\n
    of     the    Constitution,                relating to Panchayats,             to     the<\/p>\n
    Scheduled Areas.\n<\/p>\n
    .            Article           244    is    contained     in part         X    of     the<\/p>\n
    Constitution titled as “The Scheduled And Tribal Areas.”\n<\/p>\n
    and the same reads as under;\n<\/p>\n
                 “244.        Administration             of Scheduled         Areas       and<\/p>\n
                 Tribal       Areas:- (1) The provisions of the                        Fifth<\/p>\n
                 Schedule          shall apply to the administration                      and<\/p>\n
                 control       of        the Scheduled Areas           and      Scheduled<\/p>\n
                 Tribes       in     any State, other than the States                       of<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                 (8)<\/span><\/p>\n
               Asam, Meghalaya, Tripura and Mizoram.”\n<\/p><\/blockquote>\n
    .          Thus,     the        Scheduled Areas and Tribals                    in    the<\/p>\n
    Maharashtra        State,       by virtue of Article 244(1) of                       the<\/p>\n
    Constitution,        shall       be administered and controlled                        in<\/p>\n
    accordance        with the provisions of the Fifth Schedule of<\/p>\n
    the Constitution.\n<\/p>\n
    .          In     exercise of powers conferred by sub para (2)<\/p>\n
    of paragraph 6 of the Fifth Schedule to the Constitution<\/p>\n
    of India, the President, in consonance with the Governor<\/p>\n
    of     the State, has declared Scheduled Areas in the State<\/p>\n
    of     Maharashtra,
\n                             igby     the Scheduled          Areas (Maharashtra)<\/p>\n
    Order     1985     (copy        of     which is at        Exhibit         B    to     the<\/p>\n
    Petition).         Dhule        and     Nandurbar Districts              (In        fact,<\/p>\n
    existing        Nandurbar       District       is originally a                part     of<\/p>\n
    Dhule     District),        are at Entry No.3.               Entire Tahsils of<\/p>\n
    Navapur,        Taloda,     Akkalkuva and Akrani (which                       are    now<\/p>\n
    part     and     parcel     of Nandurbar District)                  are       declared<\/p>\n
    Scheduled Area.           Similarly, 80 villages out of 221, from<\/p>\n
    Sakri Tahsil (still part of Dhule District), 82 villages<\/p>\n
    in     Nandurbar     Tahsil           and town Nandurbar (now                 part     of<\/p>\n
    Nandurbar District), 141 villages in Shahada Tahsil (now<\/p>\n
    part     of Nandurbar district) and 62 villages in                             Shirpur<\/p>\n
    Tahsil     out     of     150        (now part     of     Dhule       Tahsil)         are<\/p>\n
    declared        to be the Scheduled Area.                There is no dispute<\/p>\n
    that parts of Dhule and Nandurbar Districts are declared<\/p>\n
    as     Scheduled     Area        and     not     entire      Dhule        or    entire<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                        (9)<\/span><\/p>\n
    Nandurbar          District.         Thus, Dhule and Nandurbar are                     the<\/p>\n
    two     Zilla Parishads, part of each having been                              declared<\/p>\n
    as    Scheduled           Areas,         by    the   President        of     India       in<\/p>\n
    exercise          of     powrs      conferred upon His            Excellency,            by<\/p>\n
    paragraph 6 of the Fifth Schedule of the Constitution.\n<\/p>\n
    03.         Both        the Petitioners claimed to be residents of<\/p>\n
    declared Scheduled Areas.                     Petitioner No.          1 was elected<\/p>\n
    as      a        member       of     Panchayat        Samiti        from        Dhanora<\/p>\n
    constituency            and     consequently, he was also elected                        as<\/p>\n
    Chairman          of     Panchayat Samiti, Nandurbar.                    Both       these<\/p>\n
    seats       were reserved for Scheduled Tribe category in the<\/p>\n
    last election.\n<\/p>\n
                               igPetitioner No.          2 is Sarpanch of village<\/p>\n
    Mohagaon,          a seat reserved for Scheduled Tribe category.\n<\/p>\n
    Petitioners            are     desirous        of    contesting          forthcoming<\/p>\n
    elections          of Zilla Parishad and Panchayat Samiti,                            from<\/p>\n
    the     respective constituencies.                   (They are residents                 of<\/p>\n
    village           Dhanora          and          Mohagaon).          According            to<\/p>\n
    Petitioners,            Article          243-D prescribes         reservation            of<\/p>\n
    seats       for        S.C.    and S.T.         in every Panchayat             and     the<\/p>\n
    number       of        seats so reserved, are required to                      bear      as<\/p>\n
    nearly       as        may be, the same proportion to the total                          of<\/p>\n
    seats       to     be     filled         in, by direct       election          in     that<\/p>\n
    Panchayat, as the population of Scheduled Caste\/Schedule<\/p>\n
    Tribe in the Panchayat Area bears to total population of<\/p>\n
    that area.             (To describe in brief, reservation according<\/p>\n
    to    population             ratio).          One-third    of     the      seats         so<\/p>\n
    reserved,          are further required to be reserved for women<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                 (10)<\/span><\/p>\n
    belonging to the respective categories.\n<\/p>\n
    .          According       to    Petitioners, Union of               India      has<\/p>\n
    enacted PESA and thus extended the provisions of Part IX<\/p>\n
    of   the       Constitution      relating     to     Panchayats          to     the<\/p>\n
    Scheduled         Areas,    subject    to      such          exceptions           or<\/p>\n
    modifications        as provided in Section 4 of the said Act.\n<\/p>\n
    The Petitioners have reproduced Section 4(g) of PESA for<\/p>\n
    ready reference, which runs thus;\n<\/p>\n
               “4.       Notwithstanding anything contained under<\/p>\n
               Part    IX of the Constitution, the Legislature of<\/p>\n
               a<\/p>\n
                     State shall not make any law under that                       Part<\/p>\n
               which    is inconsistent with any of the following<\/p>\n
               features, namely,:-\n<\/p><\/blockquote>\n
               (a) to (f) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<\/p>\n<\/blockquote>\n
               (g).      the        reservation        of        seats      in      the<\/p>\n
               Scheduled       Areas at every Panchayat shall be                      in<\/p>\n
               proportion       to the population of the communities<\/p>\n
               in that Panchayat for whom reservation is sought<\/p>\n
               to be given under Part IX of the Constitution.\n<\/p><\/blockquote>\n
               .         Provided       that     the reservation for                the<\/p>\n
               Scheduled       tribes    shall     not      be     less      than       a<\/p>\n
               One-third of the total number of seats;\n<\/p><\/blockquote>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                   (11)<\/span><\/p>\n
               .              Provided      further    that          all      seats       of\n\n               Chairpersons           of Panchayats at all levels                    shall\n\n               be reserved for the Scheduled Tribes.                          \"\n\n\n\n\n                                                                                   \n    .          According         to the Petitioners, once part area is\n\n\n\n\n                                                           \n<\/pre>\n
    declared as Scheduled Area, as referred to in clause (1)<\/p>\n
    of     Article       244     of the Constitution, there                 cannot        be<\/p>\n
    rotation of seats in the Scheduled Area (as contemplated<\/p>\n
    by      Article        243-D(1)),        as     PESA     clearly           indicates<\/p>\n
    reservation          for Scheduled Tribes in the Scheduled Area.\n<\/p><\/blockquote>\n
    On     2.12.1985,          Presidential Order about              the      Scheduled<\/p>\n
    Areas     (Maharashtra)           is    published,        declaring           certain<\/p>\n
    areas<\/p>\n
              of Dhule and Nandurbar Districts to be                          Scheduled<\/p>\n
    Areas     under        paragraph 6 of the Fifth Schedule                      of    the<\/p>\n
    Constitution.              The State Election Commission and                     other<\/p>\n
    authorities          of     the State are, therefore,                required         to<\/p>\n
    reserve        seats in the Scheduled Area for the forthcoming<\/p>\n
    elections        for       Zilla Parishad and Panchayat Samitis                       in<\/p>\n
    accordance with provisions of PESA.                     The Petitioners, by<\/p>\n
    representations to the Honourable the Chief Minister, as<\/p>\n
    also     the     State       Election         Commission,        requested            to<\/p>\n
    implement        the       provisions     of      PESA      (reservation              in<\/p>\n
    accordance          with     provisions       of PESA), at           the      ensuing<\/p>\n
    Zilla     Parishad          and   Panchayat Samiti           Elections.             (As<\/p>\n
    informed       by      Advocate        Shri S.T.Shelke         for      the        State<\/p>\n
    Election Commission, the election programme is likely to<\/p>\n
    be     declared        on 10.11.2008, polling is proposed                      to     be<\/p>\n
    scheduled on 30.11.2008 and counting on 2.12.2008.                                 This<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                       (12)<\/span><\/p>\n
    is     because,           the     term of existing Zilla          Parishad         and<\/p>\n
    Panchayat           Samiti        ends sometime between 20th             and      30th<\/p>\n
    December           2008.)        According to the Petitioners, PESA                  is<\/p>\n
    enacted        with the aim and object that the administration<\/p>\n
    and     control of Scheduled Areas shall be in the hands of<\/p>\n
    Scheduled Tribes.\n<\/p>\n
    .          The State of Maharashtra has effected amendments<\/p>\n
    to the Maharashtra Zilla Parishads and Panchayat Samitis<\/p>\n
    Act,     1961 (henceforth referred to as “ZPPS Act”), as                               a<\/p>\n
    result        of        amendments to Sections 12(2)(b) and 58 (1-B)<\/p>\n
    (b),     which           are     not in consonance with         and      in      fact,<\/p>\n
    contrary           to<\/p>\n
                              Parts IX and X of the           Constitution,           i.e.<\/p>\n
    Articles           243,        243-D,     244 and Schedule      Fifth       of     the<\/p>\n
    Constitution              of     India,    read    with     PESA,      a      central<\/p>\n
    legislation.               The     Petitioners believe that during                 the<\/p>\n
    discussion              in the meetings, the Respondents-authorities<\/p>\n
    and     the        State        Election      Commission     overlooked            the<\/p>\n
    provisions of PESA.\n<\/p>\n
    .          Local Member of Parliament, Shri B.H.Chaure, had<\/p>\n
    moved     the           Hon’ble Chief Minister, as well as                 Election<\/p>\n
    Commissioner, for declaring above referred provisions of<\/p>\n
    ZPPS     Act, as null and void, since those are in conflict<\/p>\n
    with Articles 244(1), Fifth Schedule of the Constitution<\/p>\n
    and     Section 4(g) of PESA.                 He also had     moved,Director,<\/p>\n
    National Commission for Scheduled Tribe, Bhopal, to look<\/p>\n
    into     the matter ( Exh.C colly.).                 It appears that,              the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                       (13)<\/span><\/p>\n
    Chairperson of National Commission for Scheduled Tribes,<\/p>\n
    had     moved        the       Hon’ble Chief      Minister       requesting           to<\/p>\n
    initiate        immediate          action to amend through             Ordinance,<\/p>\n
    ZPPS     Act,        for       supersession of earlier           amendment           and<\/p>\n
    bringing        the same in harmony with Section 4(g) of                          PESA<\/p>\n
    (Exh.      D).            (Exhibits C and D are           the     communications<\/p>\n
    dated May\/July, 2008).\n<\/p>\n
    .          Petitioners             have prepared at Exhibit E, a table<\/p>\n
    of reservation proposed by the State Election Commission<\/p>\n
    for     Zilla        Parishads          and   Panchayat    Samitis,         at       the<\/p>\n
    ensuing     elections,             as     gathered   by    them       during         the<\/p>\n
    meetings        held<\/p>\n
                                on     27.5.2008, 13.6.2008         and      1.7.2008.\n<\/p>\n
    According        to        Petitioners, Respondents-authorities                    are<\/p>\n
    neglecting the provisions of PESA and amended provisions<\/p>\n
    of     ZPPS Act, are likely to create chaos due to conflict<\/p>\n
    between Central legislation (PESA) and State legislation<\/p>\n
    (ZPPS     Act).            According to the petitioners, PESA                   is     a<\/p>\n
    legislation          with superior efficacy and it must                     prevail<\/p>\n
    over     ZPPS        Act,        to the extent provisions of             the      said<\/p>\n
    State Act are not in harmony with PESA.                         For the purpose<\/p>\n
    of     pleading that so far as governance of Scheduled Area<\/p>\n
    through     Panchayats             is concerned, no        other       enactment,<\/p>\n
    much     less        a     State     legislation     will       be    applicable,<\/p>\n
    reliance        is        placed    upon      the speech     of      the    Hon’ble<\/p>\n
    Minister        of        Rural    Areas and Employment           (Shri       Yerran<\/p>\n
    Naidu),     at           the     time of introduction of          the      bill       to<\/p>\n
    provide     for           extension of provisions of Part IX to                      the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                  (14)<\/span><\/p>\n
    Scheduled Areas (PESA).               (Exh.        F).\n<\/p>\n
               “.         After        the enactment of the Constitution<\/p>\n
               73rd      Amendment        Act,        these        State      Governments<\/p>\n
               having       Scheduled           Areas,            enacted      the       State<\/p>\n
               Panchayat        laws      which        did         not       exclude       the<\/p>\n
               Scheduled        Area.          This     action        on       their      part<\/p>\n
               tantamount          to        extension        of     legislation             on<\/p>\n
               Panchayati        Raj      to     the        Scheduled         Area.s       The<\/p>\n
               extension        of Part IX of the Constitution by the<\/p>\n
               States      of Andhra Pradesh and Bihar to Scheduled<\/p>\n
               Areas      was     challenged in their respective                          High<\/p>\n
               Courts.\n<\/p><\/blockquote>\n
                           ig   The Courts have held the extension                           of<\/p>\n
               State      Panchayats Acts to the Scheduled Areas as<\/p>\n
               ultra      vires of the Constitution and viewed that<\/p>\n
               Part IX can be extended to these Scheduled Areas<\/p>\n
               only      through        an     Act     on     the        Parliament,         as<\/p>\n
               provided      in     Article           243     M     (4)       (b)    of    the<\/p>\n
               Constitution.            That is why I am introducing the<\/p>\n
               present      Amendment          which         would       apply      to     the<\/p>\n
               Scheduled Areas in eight States.                          ”\n<\/p><\/blockquote>\n
    04.        In case of all the parties, submissions are just<\/p>\n
    elaborations         of the pleadings and, therefore, it                            would<\/p>\n
    be    desirable       and     useful        to sum        up     the       submissions<\/p>\n
    advanced        on   behalf     of the Petitioners, by                      Shri      P.M.\n<\/p>\n
    Shah, learned Senior Counsel.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                 (15)<\/span><\/p>\n
    .          Learned       Senior Counsel Shri Shah desired us                    to<\/p>\n
    take     into consideration certain specific dates and                        the<\/p>\n
    dates     to which he drew our attention can be enlisted as<\/p>\n
    follows;\n<\/p>\n
    24.04.1993.             Part IX of the Constitution                 of     India
\n                            came into force.\n<\/p>\n
    30.10.1996.             Maharashtra    Zilla     Parishads   and
\n                            Panchayat Samitis (Manner and rotation<\/p>\n
                            of Reservation of Seats) Rules 1996.\n<\/p>\n
    24.12.1996.             PESA came into force.\n<\/p>\n
    03.01.1997.             Amendment to ZPPS Act (Sections 12(2)(b)
\n                            and   58 (1-B)(b)    came into    force,<\/p>\n
                            initially by way of Ordinance I of 1997
\n                            and then by amendment to the Act.\n<\/p>\n
    .          It    was submitted that in view of Article                     243-M<\/p>\n
    read     with Article 244(1) and Fifth Schedule, Part IX of<\/p>\n
    the     Constitution would not apply to the Areas                     declared<\/p>\n
    as     Scheduled       Area,   by      Presidential      order        of      1985<\/p>\n
    (Exh.B).         The     Central legislation (PESA) is              the       only<\/p>\n
    legislation        that can govern the Scheduled Area for                     the<\/p>\n
    purpose of Panchayati Raj and reservation ought to be in<\/p>\n
    accordance       with     Section     4(g) of PESA.          The      Election<\/p>\n
    Commission,        according       to learned Senior         Counsel          Shri<\/p>\n
    Shah,     seems to plead that it follows 1996 Rules, due to<\/p>\n
    judgment        in Writ Petition No.5386 fo 2006, delivered by<\/p>\n
    this     Court     on     3.10.2006.      But,    rule       4(2)        of    the<\/p>\n
    Maharashtra        Z.P    and P.S.     (amendment and          rotation         of<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                   (16)<\/span><\/p>\n
    reservation of seats) Rules 1996 (henceforth referred to<\/p>\n
    as     “the 1996 Rules” for brevity’s sake), is in conflict<\/p>\n
    with Section 4(g) of PESA, since the said rule restricts<\/p>\n
    only     one     reservation per block, by           rotation,          whereas<\/p>\n
    PESA neither recommends rotation nor reservation of only<\/p>\n
    one     seat     per block, which may cause at times, only                       50<\/p>\n
    per     cent     seats for S.T., although population of ST                       is<\/p>\n
    more than 50 per cent as compared to total population of<\/p>\n
    the block.\n<\/p>\n
    .          Section       2(26-A) of ZPPS Act defines               “Scheduled<\/p>\n
    Areas”     to        mean it the Scheduled Areas referred                 to     in<\/p>\n
    clause<\/p>\n
               (1) of Article 244 of the Constitution of India.\n<\/p>\n
    Section        12(2)(b), as applicable to Zilla Parishads                      and<\/p>\n
    Section        58(1-B) (b) Panchayat Samitis, are                 identically<\/p>\n
    worded         and     thse   are     the   provisions            prescribing<\/p>\n
    reservations          at Zilla Parishads and Panchayat                 Samitis.\n<\/p>\n
    elections       respectively.         We were specifically taken                 to<\/p>\n
    first     two        provisos, out of the three          provisos,          below<\/p>\n
    Sections        12(2)(b) and 58 (1-B)(b).          We reproduce those,<\/p>\n
    as below.\n<\/p>\n
               ”    Provided that in a Zilla Parishad                  (Panchayat<\/p>\n
              Samiti) comprising entirely the Scheduled Areas,<\/p>\n
              the        seats    to    be reserved    for      the      Scheduled<\/p>\n
              Tribes        shall      not be less than one half of                the<\/p>\n
              total        number      of seats in the      Zilla        Parishad.\n<\/p><\/blockquote>\n
              (Panchayat Samiti)<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                    (17)<\/span><\/p>\n
                 .          Provided       further that, the          reservation<\/p>\n
                 for   the     Scheduled Tribes in a           Zilla        Parishad<\/p>\n
                 (Panchayat Samiti) falling only partially in the<\/p>\n
                 Scheduled        Areas shall be in accordance with the<\/p>\n
                 provisions of clause (b).”\n<\/p><\/blockquote>\n
                                          ”<\/p>\n
    .           We may state here itself that concluding clauses<\/p>\n
    of    Section 12(2)(b) and Section 58(1-B)(b)                     identically<\/p>\n
    read:\n<\/p>\n
                “……..         and such seats shall be allotted                    by<\/p>\n
                rotation<\/p>\n
                             to     different     electoral          divisions          \/<\/p>\n
                colleges in a Zilla Parishad\/Panchayat Samiti.”\n<\/p><\/blockquote>\n
    .           According      to    learned Senior Counsel Shri                   P.M.\n<\/p>\n
    Shah,       the PESA does not recommend rotation, which would<\/p>\n
    be    applicable even to the Scheduled Area, by virtue                            of<\/p>\n
    first       proviso, because reservations for Zilla Parishads<\/p>\n
    or    Panchayat Samitis comprising entirely the                       Scheduled<\/p>\n
    Areas,      are    to    be     governed    by    clause       (b)      of      the<\/p>\n
    respective         sections.          (terminal     clause        of       which,<\/p>\n
    prescribing rotation, is reproduced hereinabove).\n<\/p>\n
    .           It was submitted that second proviso practically<\/p>\n
    derecognises the Scheduled Area as such, when it is only<\/p>\n
    a    part     of   Zilla      Parishad \/     Panchayat         Samiti        Area,<\/p>\n
    because      in such areas, reservations are to be                      governed<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                         (18)<\/span><\/p>\n
    only     by        clause          (b) and first proviso,          pertaining           to<\/p>\n
    Zilla        Parishad          \/ Panchayat Samiti comprising                  entirely<\/p>\n
    the Scheduled Area, will not come into play and thereby,<\/p>\n
    there        shall       not be a mandate for reservation at                       least<\/p>\n
    One-half          of the total number of seats for the Scheduled<\/p>\n
    Tribe.            The    second proviso thus conflicts                  with       first<\/p>\n
    proviso to Section 4(g) of PESA.<\/p>\n
\n\n\n\n\n                                                            \n    .            Shri        Shah,       learned     Senior Counsel,            has      also\n\n    placed        reliance          upon paragraph 7 of the              affidavit          in\n\n    reply        filed       by        Smt.    Susan George, Director,             in     the\n\n\n\n\n                                                 \n    Ministry          of     Panchayati          Raj, New Delhi, on           behalf        of\n\n    Respondent             Nos.\n                                ig     3 to 5, with emphasis on            observations\n\n    of     the        Committee under the chairmanship of Shri                         Dilip\n                              \n    Singh        Bhuria, Member of Parliament, in its report dated\n\n    17.1.1995,             reproduced          within paragraph 7 of the               reply\n\n    itself.\n      \n   \n\n\n\n    .            Learned Senior Counsel also did not fail to draw\n\n    our     attention             to     paragraphs 3, 5 and 6 of             the       reply\n\n\n\n\n\n    filed        by     Shri       Rajiv Pandey,       Under      Secretary,            State\n\n<\/pre>\n
    Election          Commission, on behalf of Respondent No.2.                             It<\/p>\n
    was     pointed          out that in the judgment in Writ                     Petition<\/p>\n
    No.5386           of 2008, which the Election Commission referred<\/p>\n
    in     its        reply,       the court was       not     considering            either<\/p>\n
    Article 243-M or provisions of PESA.\n<\/p>\n
    .            Lastly, learned Senior Counsel urged to consider<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                    (19)<\/span><\/p>\n
    that        once     the     Scheduled        Area      is     declared          by     the<\/p>\n
    President,           which is part of Zilla Parishad or Panchayat<\/p>\n
    Samiti,        for     the     purpose        of     working     out      elections,<\/p>\n
    practically           the     court     may        examine      desirability            of<\/p>\n
    treating           such area as one Division governed by PESA and<\/p>\n
    another Division governed by ZPPS Act.\n<\/p>\n
    05.          While         advancing    submissions on behalf                  of      the<\/p>\n
    State        Election        Commission,       Advocate        Shri       S.T.Shelke<\/p>\n
    submitted           that     the State Election           Commission           neither<\/p>\n
    opposes nor supports the Petition and it will follow the<\/p>\n
    verdict        that        will be delivered by the court.                       He     has<\/p>\n
    given us tentative election programme and has urged that<\/p>\n
    delivery           of judgment even during vacation, if possible,<\/p>\n
    will leave time margin for State Election Commission, if<\/p>\n
    it     is     required        to   do    exercise        of     readjustment             of<\/p>\n
    reservations,              in the light of verdict of the Court.                        He<\/p>\n
    has     supported           the argument of learned              Senior        Counsel<\/p>\n
    Shri        Shah     for     the Petitioners that              while      delivering<\/p>\n
    judgment           in Writ Petition No.5386 of 2006 on 3.10.2006,<\/p>\n
    this        court     was     not considering          provisions           of        PESA,<\/p>\n
    although rigour of that judgment is subsequently diluted<\/p>\n
    by judgment of another Division Bench of this High Court<\/p>\n
    in     Writ        Petition No.6389 of 2006 rendered on                       9.2.2007<\/p>\n
    (reported at 2007 (4) Mh.L.J.341)<\/p>\n
    .            According         to Advocate Shri Shelke, delimitation<\/p>\n
    and     reservation           for ensuing elections is done                    by      the<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                       (20)<\/span><\/p>\n
    State        Election        Commission, by following directions                            in<\/p>\n
    the     said        two     judgments.           He also urged the              court       to<\/p>\n
    examine, if amendments to Sections 12 and 58 of the ZPPS<\/p>\n
    Act,     are within legislative competence of the                                 Governor<\/p>\n
    of     the     State, by para 5 of the Fifth Schedule                              of     the<\/p>\n
    Constitution.\n<\/p>\n
    .            In      the     reply on behalf of the                  State        Election<\/p>\n
    Commission,           filed by Shri Rajiv Pandey, it is contended<\/p>\n
    that     the        State Election Commission is not                        responsible<\/p>\n
    for      implementing                  the    provisions          of       PESA.          The<\/p>\n
    responsibility              of        putting forth a proposal before                     the<\/p>\n
    Maharashtra<\/p>\n
                          State Legislature for implementation of the<\/p>\n
    said     Act,        is with the Rural Development Department                               of<\/p>\n
    the     State        Government.              The     Election       Commission           has<\/p>\n
    implemented           the        order       passed by Aurangabad               Bench       of<\/p>\n
    Bombay        High        Court in Writ Petition No.                   5386 of         2006,<\/p>\n
    wherein        this        Court        had directed that            the      policy        of<\/p>\n
    rotation in reservation of seats has to be followed.                                        By<\/p>\n
    decision in Writ Petition No.6389 of 2006 and five other<\/p>\n
    writ     petitions,              this     court        has    also       directed         the<\/p>\n
    Election          Commission to devise suitable modalities under<\/p>\n
    its     powers        to     give        true effect and            meaning        to     the<\/p>\n
    rotation          policy         as     envisaged      in     the      constitutional<\/p>\n
    scheme        and     the        1996        Rules.    Elections         of     27      Zilla<\/p>\n
    Parishads           in the State are completed in the year                             2007.\n<\/p>\n
    The     State Election Commission has sent several                                 letters<\/p>\n
    to     the     Government of Maharashtra to delete proviso                                  to<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                      (21)<\/span><\/p>\n
    Rule     4     (2) of the 1996 Rules.                 However, no         action        is<\/p>\n
    taken     by       the State Government to that end.                        The      said<\/p>\n
    proviso        insists         that,      reservation of         Zilla        Parishad<\/p>\n
    seats     for SC and ST should be limited only to one                                seat<\/p>\n
    per     Panchayat Samiti, which is not feasible in                             several<\/p>\n
    districts where seats for SC and ST exceed the number of<\/p>\n
    Panchayat          Samitis.         Dhule Zilla Parishad               consists         of<\/p>\n
    four Panchayat Samitis.                 On the basis of Scheduled Tribe<\/p>\n
    population,           18      seats have been reserved for ST in                      the<\/p>\n
    said     Zilla        Parishad         and    40   seats      are        reserved       in<\/p>\n
    Nandurbar          Zilla Parishad, in six Panchayat Samitis.                            In<\/p>\n
    both     these Zilla Parishads, every Panchayat Samiti                                has<\/p>\n
    more than one seat reserved for ST.                       As the seats for ST<\/p>\n
    are     to be reserved on the basis of population ratio                                 of<\/p>\n
    that     category,            the State Election Commission                   has     not<\/p>\n
    been able to give effect to Rule 4(2) of the 1996 Rules.\n<\/p>\n
    .            The      submission on behalf of the State                       Election<\/p>\n
    Commission           that      it   would be unfair           to     rotate         seats<\/p>\n
    earmarked          for        Scheduled      Tribe,    particularly            in     the<\/p>\n
    Scheduled            Area,       because      seats     earmarked           for       the<\/p>\n
    Scheduled          Tribes would move out of the Scheduled                           Area,<\/p>\n
    was not accepted by this court in Writ Petitiion No.5386<\/p>\n
    of     2006.         The       term of Zilla Parishads              of     Dhule      and<\/p>\n
    Nandurbar expires on 27.12.2008 and the elections to the<\/p>\n
    same     are required to be completed before that date.                                 It<\/p>\n
    is     urged that changes, if any, which are required to be<\/p>\n
    carried        out       in     the reservation at this              stage,         would<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                       (22)<\/span><\/p>\n
    affect        entire electoral process in these districts                                  and<\/p>\n
    it     may not be possible to complete the election process<\/p>\n
    before expiry of the terms.\n<\/p>\n
    06.          While opposing the petition, it was contended by<\/p>\n
    Shri     Umakant Patil, learned A.G.P.                         that Article               243-D<\/p>\n
    provides          rotation which is not provided by PESA.                                  PESA<\/p>\n
    is     silent        on     the         aspect    and,        therefore,           Sections<\/p>\n
    12(2)(b)          and 58 (1-B)(b) of the ZPPS Act to the                              extent<\/p>\n
    those        provisions          prescribe rotation, do                   not      conflict<\/p>\n
    either        with        the     Constitution or PESA.                   According          to<\/p>\n
    leaned        A.G.P.,        the amendments to those                    Sections           are,<\/p>\n
    therefore,<\/p>\n
                         in harmony with Article 243-D and PESA.                                 It<\/p>\n
    was     impliedly submitted that, if the second proviso                                      to<\/p>\n
    Sections          12(2)(b)        and     58 (1-B)(b),             which        are       taken<\/p>\n
    exception           to     by     the learned Senior               counsel         for      the<\/p>\n
    Petitioners, are to be ignored, then it will be treating<\/p>\n
    the     entire           Zilla Parishad or Panchayat Samiti                          as     the<\/p>\n
    Scheduled           Area, as soon as the President declares                                some<\/p>\n
    portions as Scheduled Area.\n<\/p>\n
    .            An      affidavit          in reply is filed by                 Shri         Paras<\/p>\n
    Bothra,        Deputy           Commissioner, (Establishment),                       in    the<\/p>\n
    office of Divisional Commissioner, Aurangabad, on behalf<\/p>\n
    of     the     State.            It is contended that               considering             the<\/p>\n
    essence        of        Article 243-D and the provisions                        of       PESA,<\/p>\n
    necessary            amendments           are    made     in        ZPPS         Act,        by<\/p>\n
    Maharashtra              Acts      20    and     40      of      1997.          By        these<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                    (23)<\/span><\/p>\n
    amendments, principle of proportionate representation to<\/p>\n
    the Scheduled Tribe and reservation of One-half of total<\/p>\n
    number of seats to the Scheduled Tribes in the Scheduled<\/p>\n
    Area,       has     been     observed.      It is       contended           that     the<\/p>\n
    provisions pertaining to reservation of all seats in the<\/p>\n
    Scheduled Area of Chairpersons of Panchayat at all three<\/p>\n
    levels       of     Panchayat       to STs also exists              in      the     said<\/p>\n
    amendment.(Such
\n              (Such            amendment,      finds place in Sections                     42<\/span><\/p>\n
    and    67      respectively, as applicable to Zilla                        Parishads<\/p>\n
    and Panchayat Samitis respectively, provided entire area<\/p>\n
    of     the     same is Scheduled Area).\n<\/p>\n
                                     Area)                 It is contended              that\n\n\n\n\n                                             \n    the    amendments          are in harmony with Article 243-D                        and,\n\n    therefore,          it\n                              \n                               cannot     be said that         the      provision          of\n\n    rotation          for     Scheduled      Area     is     not      in     line       with\n                             \n    constitutional provisions.\n\n    .            In     regard to representations of Petitioners, it\n\n    is     submitted that the Govt.                 had invited all concerned,\n      \n\n\n    including          the     representatives of the             petitioners            for\n   \n\n\n\n    meetings,          the     issue was discussed and it                 was     decided\n\n    that    the        department should scrutinise the proposal                           as\n\n\n\n\n\n    per      the       provisions       of     ZPPS        Act,       constitutional\n\n<\/pre>\n
    provisions and PESA and submit a proposal to the Cabinet<\/p>\n
    for    necessary          decision.        Representatives             from       Dhule<\/p>\n
    District          have     submitted      a counter        representation              on<\/p>\n
    24.6.2008,          pleading     for maintaining             rotation         system.\n<\/p>\n
    Opinion       was obtained from Law and Judiciary                        Department<\/p>\n
    and    it      has clearly opined that the provisions in                            ZPPS<\/p>\n
    Act,    and        more     particularly Sections 12(2)(b)                    and      58<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                      (24)<\/span><\/p>\n
    (1-B)        (b)    are     consistent          with   the        constitutional<\/p>\n
    provisions and there is no need to amend those.\n<\/p>\n
    07.          Shri        N.S.Choudhari, standing counsel for                     Union<\/p>\n
    of     India,       has     drawn       our attention       to        Article        244.\n<\/p>\n
    According          to him, in view of Article 243-M(4)(b), it is<\/p>\n
    the      Parliament             which    is     competent        to     extend        the<\/p>\n
    provisions          of     Part IX to the Scheduled Areas                    and      the<\/p>\n
    Tribal        Areas and, therefore, reference to either                          union<\/p>\n
    list     or concurrent list or State list is not necessary.\n<\/p>\n
    According to Advocate Shri Choudhari, in view of Article<\/p>\n
    254(1), law made by the Parliament shall prevail and the<\/p>\n
    law made by Legislature of State shall, to the extent of<\/p>\n
    repugnancy,          be     void.       Learned counsel for the               Central<\/p>\n
    Government has indirectly supported the writ petition.\n<\/p>\n
    .            Reply        filed on behalf of Respondent Nos.                     3     to<\/p>\n
    5,     mainly relies upon recommendations in paragraphs                               17<\/p>\n
    and     30     of    the Committee headed by              Shri         Dilip       Singh<\/p>\n
    Bhuria, reproduced in para.7 of the reply, which read;\n<\/p>\n
                 “17.         Since     the       Scheduled Areas          and     Tribal<\/p>\n
                 Areas        are    expected to have majority of                  tribal<\/p>\n
                 population,           the     different        tier           Panchayats<\/p>\n
                 therein        should have majority of Scheduled Tribe<\/p>\n
                 Members.           Further,       both the Chairman and                 Vice<\/p>\n
                 Chairman should also belong to STs.                       ”\n<\/p><\/blockquote>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                               (25)<\/span><\/p>\n
             “30.      The     Group was further of the                  view        that<\/p>\n
             notwithstanding          the     fact that the areas                 under<\/p>\n
             consideration i.e.             Scheduled Areas are expected<\/p>\n
             to     have     majority of tribal population,                     it     is<\/p>\n
             necessary       to      stipulate       that       the      Panchayats<\/p>\n
             therein       will have a majroty of Scheduled                       Tribe<\/p>\n
             members.         The     reason      is that,        the      Scheduled<\/p>\n
             Areas     were        notified      as such,       on      account        of<\/p>\n
             majority         of      Scheduled          Tribe          population,<\/p>\n
             contiguity       etc.        In course of time, on               account<\/p>\n
             of     influx     of     non-ST       population,           in     a     few<\/p>\n
             Scheduled Areas, the status of the ST population<\/p>\n
             might<\/p>\n
                       have        been    reduced      to    minority.              That<\/p>\n
             should        not be regarded to have altered over-all<\/p>\n
             the     character of Scheduled Areas.                    The chairman<\/p>\n
             and vice chairman should belong to the Scheduled<\/p>\n
             Tribe.         One-third       of    the        seats      should         be<\/p>\n
             reserved for women.”\n<\/p><\/blockquote>\n
    .        However,       paragraph 8 of the reply is                    concluded<\/p>\n
    by saying that, there is no explicit mention that once a<\/p>\n
    particular      area     is declared as Scheduled                 Area,       there<\/p>\n
    cannot be a rotation of seats in the Scheduled Area.\n<\/p>\n
    08.      The three intervenors are resisting the petition<\/p>\n
    and    Advocate Shri V.D.Hon for intervenors –                       Respondent<\/p>\n
    nos.     6 and 7 submitted that PESA is being followed and<\/p>\n
    implemented      through amendments to ZPPS Act.                       According<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                     (26)<\/span><\/p>\n
    to him, the petitioners have not challenged the validity<\/p>\n
    of     amendments to Section 12 and Section 58 of ZPPS                              Act<\/p>\n
    and,     therefore, no such declaration now can be                           issued.\n<\/p>\n
    In view of absence of prayer for such a declaration, the<\/p>\n
    petition          deserves      to be dismissed.          It     was      submitted<\/p>\n
    that     PESA was enacted for the purpose of development of<\/p>\n
    Scheduled          Area and some provisions regarding                     elections<\/p>\n
    are     also       part of it.         Entire Zilla Parishad, Dhule                   is<\/p>\n
    not     declared         as    Scheduled Area by the             President          and<\/p>\n
    hence,       according         to     Shri Hon, PESA will not               come      in<\/p>\n
    action       for entire Zilla Parishad, Dhule.                     According          to<\/p>\n
    Advocate          Shri Hon, Article 243-O would now operate as a<\/p>\n
    bar to grant any relief.\n<\/p>\n
    .            Advocate         Shri     P.S.Patil for        Respondent           No.8,<\/p>\n
    apart        from adopting the arguments advanced by Shri Hon,<\/p>\n
    has     placed reliance upon couple of reported                         judgments.\n<\/p>\n
    He     has     also      urged       that   it   is    too      late      to     issue<\/p>\n
    directions          to correct any irregularity\/illegality                         and,<\/p>\n
    therefore, if at all this Court is inclined to issue any<\/p>\n
    directions,          those may be directed to be implemented                          at<\/p>\n
    the     time       of    next       elections    and      not      the       present<\/p>\n
    elections.\n<\/p>\n
    09.          To     describe         in brief, the      petitioners,             Union<\/p>\n
    Government          on    one side have come with a case that                       the<\/p>\n
    provisions          of PESA are not being implemented, sofar                          as<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:14 :::<\/span>
\n                                    (27)<\/span><\/p>\n
    elections        of Zilla Parishads and Panchayat Samitis                              in<\/p>\n
    revenue       districts of Dhule and Nandurbar are concerned,<\/p>\n
    in     spite of the fact that, a considerable part of                                both<\/p>\n
    Zilla Parishads is declared to be Scheduled Area, by the<\/p>\n
    President        of India, by the Scheduled Area (Maharashtra)<\/p>\n
    Order,     1985.       Although Election Commission has taken                            a<\/p>\n
    role     of     an     observer,        by    conceding         that          it     shall<\/p>\n
    implement        the     directions those may be issued                       by     this<\/p>\n
    Court,     State and intervenors have opposed the Petition,<\/p>\n
    by     contending       that         the provisions of PESA              are        being<\/p>\n
    given effect within the State and more particularly, for<\/p>\n
    the      purpose       of      elections      to   Zilla        Parishads             and<\/p>\n
    Panchayat        Samitis
\n                             ig     in    revenue districts of               Dhule        and<\/p>\n
    Nandurbar,        where       there     exists Scheduled Area                  in     the<\/p>\n
    territorial          limits of each Zilla Parishad.                      Naturally,<\/p>\n
    the     first     task        before     us   is   to      find       out          whether<\/p>\n
    provisions        of     PESA are being given effect to,                       at     the<\/p>\n
    elections         of     the     Panchayats        within          the        State    of<\/p>\n
    Maharashtra          and the area declared as Scheduled Area                           by<\/p>\n
    the     President,        may        be by amendment to ZPPS               Act       and,<\/p>\n
    therefore,        it     is     necessary to       compare          the       relevant<\/p>\n
    provisions from the two legislations, as also 1996 Rules<\/p>\n
    enacted by the State, also for the same purpose.\n<\/p>\n
    .         In         fact,       the     reservation          of         seats        for<\/p>\n
    SC\/ST\/women          at the elections of Panchayats, is provided<\/p>\n
    by     Article       243-D,      as     contained in         Part        IX     of    the<\/p>\n
    Constituion          and without reproduction of entire                        Article<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                             (28)<\/span><\/p>\n
    243-D   (inserted with effect from 24.3.1993), the scheme<\/p>\n
    of   the reservations provided by the said Article can be<\/p>\n
    summed up as under;\n<\/p>\n
            (i).      Specific        reservation         of      seats         for<\/p>\n
            Scheduled Castes and Scheduled Tribes.\n<\/p><\/blockquote>\n
            (ii).     Reservation         of seats as per           population<\/p>\n
            ratio of the communities.\n<\/p><\/blockquote>\n
                      Rotation       of    seats     is      permissible            -\n\n\n\n\n                                     \n                      \"Such     seats may be allotted by rotation\n                      \n                      to different constituencies\"\n                     \n            (iii).    Not     less    than One-third seats               amongst\n\n<\/pre>\n
            those reserved for SC\/ST, to be further reserved<\/p>\n
            for women of the same category.\n<\/p><\/blockquote>\n
            (iv).     Not     less    than one-third of             the      total<\/p>\n
            seats     to be reserved for women (by taking                      into<\/p>\n
            account    the     seats already reserved               for      SC\/ST<\/p>\n
            women).\n<\/p><\/blockquote>\n
                      Rotation       of seats reserved for women is<\/p>\n
                      permissible.\n<\/p><\/blockquote>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                 (29)<\/span><\/p>\n
               (v).      Reservations        of     Offices             of      the\n\n               Chairpersons       as   per    State     legislation,            but\n\n<\/pre>\n
               according to population ratio, and One-third for<\/p>\n
               women.        (Reservations for women permissible                  by<\/p>\n
               rotation).\n<\/p><\/blockquote>\n
               (vi).     Reservation         for      OBC         by         State\n\n               legislation.\n\n\n\n\n                                                  \n    .          We     have already reproduced Section 4(g) of PESA\n\n    and     the scheme of reservations, under the said                   Central\n\n\n\n\n                                       \n    Legislation        (came    into   force on    24.12.1996)           can      be\n\n    summed up as under;\n                         \n                        \n               (i).      Reservations for SC\/ST as per population\n\n               ratio.\n      \n\n\n               (ii).     Not     less than 50 per cent seats of                 the\n   \n\n\n\n<\/pre>\n
               total number of seats to be reserved for ST.\n<\/p><\/blockquote>\n
              (iii).     All    seats of Chairpersons of Panchayats<\/p>\n
              at all levels to be reserved for ST.\n<\/p><\/blockquote>\n
    .         The     provisions regarding reservations by                   State<\/p>\n
    legislation,       are contained in Sections 12(2)(b) and                     58<\/p>\n
    (1-B)     (b)   of   ZPPS Act (as amended         with       effect        from<\/p>\n
    3.1.1997).        Both     the Sections are identically              worded,<\/p>\n
    the     first   one being applicable, sofar as elections                      to<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                 (30)<\/span><\/p>\n
    Zilla Parishads are concerned, and the later one for the<\/p>\n
    elections to Panchayat Samitis.              In addition, there is a<\/p>\n
    set   of rules-Maharashtra Zilla Parishads and                       Panchayat<\/p>\n
    Samitis    (manner and rotation of reservations of                        seats)<\/p>\n
    Rules 1996, which came into force on 30.10.1996.\n<\/p>\n
    .         Under    the provisions of ZPPS Act, the scheme of<\/p>\n
    reservation can be summed up as under.\n<\/p>\n
              (i).       Provision       of reservation for              SC\/ST\/OBC<\/p>\n
              and Women.\n<\/p>\n
              (ii).<\/p>\n
\n                       \n                         Reservation       for SC\/ST as per population\n\n              ratio    and      by     rotation,\n                                       rotation \"such seats              shall       be\n                      \n              allotted     by     rotation       to   different          electoral\n\n              divisions\/colleges.\".\n      \n\n\n              (iii).     Not     less    than 50 per cent seats to                   be\n   \n\n\n\n<\/pre>\n
              reserved for ST, if “entire area” is declared as<\/p>\n
              Scheduled Area.\n<\/p>\n
              (iv).      Reservation       for    ST as per          clause        (b)<\/p>\n
              i.e.     population ratio, if only part of area is<\/p>\n
              declared as Scheduled Area.\n<\/p>\n
              (v).       Only    one-third seats from amongst seats<\/p>\n
              reserved     for SC\/ST, to be reserved for women of<\/p>\n
              such category, by rotation.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                (31)<\/span><\/p>\n
    .        When     we refer to 1996 Rules, the implementation<\/p>\n
    of reservations is prescribed as follows;-\n<\/p>\n
             (i).         As   per Rule 3, reservation for SC\/ST as<\/p>\n
             per Sectiion 12(2) of ZPPS Act, i.e.                  population<\/p>\n
             ratio.\n<\/p><\/blockquote>\n
             (ii).        Reservation      of   seats       by       rotation,<\/p>\n
             beginning         with the constituency having             highest<\/p>\n
             population of the reserved category and rotating<\/p>\n
             to     the    constituencies in descending              order       of<\/p>\n
             population.\n<\/p><\/blockquote>\n
             (iii).       Rotation    of   SC\/ST seats        to     electoral<\/p>\n
             divisions,        where there was no such             reservation<\/p>\n
             in earlier election.\n<\/p><\/blockquote>\n
             (iv).        Not more than 1 seat (to be reserved) in<\/p>\n
             any one Block (Note:          on reading Sections 2 (3),<\/p>\n
             5 and 56 of ZPPS Act, together one Block becomes<\/p>\n
             equivalent to one Panchayat Samiti).\n<\/p><\/blockquote>\n
    .        By     virtue      of clause (4) (b) of Article              243-M,<\/p>\n
    the   Parliament       is empowered to enact a legislation                   to<\/p>\n
    extend   the provisions of Part IX of the Constitution to<\/p>\n
    the   Scheduled Area, and PESA is that legislation.                        The<\/p>\n
    Parliament      is also empowered to extend such application<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                (32)<\/span><\/p>\n
    of   Part IX, subject to exceptions and modifications                          as<\/p>\n
    may be prescribed in such law.            Section 3 of PESA reads;\n<\/p>\n
               \"3.       The     provisions    of    Part         IX     of      the\n\n\n\n\n                                                                             \n               Constitution,         relating to Panchayats are hereby\n\n\n\n\n                                                    \n<\/pre>\n
               extended to the Scheduled Areas, subject to such<\/p>\n
               exceptions      and     modifications      as      provided         in<\/p>\n
               Section 4.”\n<\/p>\n
    .          We     have already reproduced Section 4(g) of PESA<\/p>\n
    in the earlier part of this judgment and in the process,<\/p>\n
    have also reproduced opening part of Section 4, which we<\/p>\n
    reproduce at the cost of repetition;\n<\/p>\n
               “4.       Notwithstanding anything contained under<\/p>\n
               Part    IX of the Constitution, the legislature of<\/p>\n
               a     State shall not make any law under that part,<\/p>\n
               which    is inconsistent with any of the following<\/p>\n
               features, namely;\n<\/p><\/blockquote>\n
               ………………………………………..\n<\/p><\/blockquote>\n
               ………………………………………..”\n<\/p><\/blockquote>\n
    .          On comparison of Article 243-D with Section 4(g)<\/p>\n
    of   PESA,       following    features    of    distinction           can      be<\/p>\n
    noticed.\n<\/p>\n
    .          Article 243-D contemplates allotment of reserved<\/p>\n
    seats   by rotation to different constituencies.                      It also<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                     (33)<\/span><\/p>\n
    contemplates            that not less than One-third of the                   total<\/p>\n
    number       of     seats reserved shall be reserved                for       women<\/p>\n
    belonging         to     respective reserved categories.                It     also<\/p>\n
    makes provision for not less than One-third seats of the<\/p>\n
    total number of seats in every Panchayat, to be reserved<\/p>\n
    for women and to be allotted to different constituencies<\/p>\n
    by rotation.            It must be said that clause (g) of Section<\/p>\n
    4     of PESA, which introduced exceptions\/modifications to<\/p>\n
    the     application           of Part IX of the Constitution to                 the<\/p>\n
    Scheduled Area, is silent on all above aspects.<\/p>\n
\n\n\n\n\n                                           \n    .            It    can       be said that the two provisos              to     main\n\n    clause        (g)       of\n                              ig  Section   4   of   PESA    clearly          provide\n\n    modifications            to the provision regarding reservation as\n                            \n<\/pre>\n
    contained in Part IX of the Constitution, in the form of<\/p>\n
    Article       243-D.          The   first   proviso      prescribes            that<\/p>\n
    reservation         for the Scheduled Tribes shall not be                      less<\/p>\n
    than     a    one-half         of the total number       of      seats.         The<\/p>\n
    second       proviso         requires all seats of       Chairpersons             of<\/p>\n
    Panchayats         at    all levels to be reserved for                Scheduled<\/p>\n
    Tribes.        What      is prescribed by these two              provisos         to<\/p>\n
    clause       (g) of Section 4 of PESA, does not find place in<\/p>\n
    Article      243-D.          On the contrary, clause (4) of              Article<\/p>\n
    243-D     empowers           the State Government to make a law                 for<\/p>\n
    providing         reservation       for Scheduled Castes,             Scheduled<\/p>\n
    Tribes       and women to the offices of Chairpersons in                        the<\/p>\n
    Panchayats         at    any level and proviso to clause                 (4)      of<\/p>\n
    Article      243-D       prescribes that the reservation                 to     the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                     (34)<\/span><\/p>\n
    offices       of        Chairpersons       shall       also     bear        the      same<\/p>\n
    proportion to total number of offices of Chairpersons as<\/p>\n
    per the population ratio.                  First proviso to Section 4(g)<\/p>\n
    may appear to be in conflict with Article 243-D, because<\/p>\n
    in     a given case the reservation for Scheduled Tribe may<\/p>\n
    be     50     per cent, although population of                    the       Scheduled<\/p>\n
    Tribe       may not be fifty percent.                The Second proviso                is<\/p>\n
    clearly       in        conflict with clause (4) of Article                     243-D.<\/p>\n
\n\n\n\n\n                                                           \n    However,           since        Article     243-M        (4)         begins          with\n\n    non-obstante            clause, \"Notwithstanding anything in                        this\n\n    Constitution\"             and    sub     clause (b) of said             clause       (4)\n\n\n\n\n                                              \n    empowers          the     Parliament       to   make     a     law      subject        to\n\n    exceptions          and\n                              \n                                modifications          without such          law      being\n\n    deemed       amendment          of     the Constitution, it may                not     be\n                             \n    possible          to express that the modifications as contained\n\n    in     the     two provisos are unconstitutional.                      Liberty         to\n\n    modify       Part IX as applicable to the Scheduled Area with\n      \n\n\n    exceptions          and     modifications,is           granted         by      Article\n   \n\n\n\n    243-M(4)(b) itself.\n\n\n\n\n\n    .            As     regards          rotation   of      reserved         seats       and\n\n<\/pre>\n
    reservation for women provided in Article 243-D, PESA is<\/p>\n
    silent.       It does not specifically prohibit “rotation” as<\/p>\n
    well        as “one-third reservation for women” either within<\/p>\n
    the     reserved seats, or within total number of seats                                of<\/p>\n
    Panchayat.          By Section 3, Part IX of the Constitution is<\/p>\n
    extended          in its application to Scheduled Areas                       subject<\/p>\n
    to the exceptions\/modifications as in Section 4 of PESA.\n<\/p>\n
    The modifications, indicated hereinabove;                           are contained<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                      (35)<\/span><\/p>\n
    in two provisos.             However, it may not be possible to say<\/p>\n
    that     ‘rotation’          and ‘one-third reservation for                       women’<\/p>\n
    are deleted as ‘exceptions’.\n<\/p>\n
                   ‘exceptions’                    If the Parliament intended<\/p>\n
    that     ‘rotation’          and ‘one-third reservation for                      women’<\/p>\n
    amongst        reserved seats or amongst total number of seats<\/p>\n
    should     not        apply, it could have expressly said                        so     in<\/p>\n
    clause (g) of Section 4 of PESA.                    We are of a considered<\/p>\n
    view     that        silence in Section 4(g) of                  PESA,      regarding<\/p>\n
    ‘rotation’       and ‘reservation for women’ does not                            amount<\/p>\n
    to     ‘exception’         to      the     applicability           of     those,        as<\/p>\n
    prescribed       by        Article       243-D, also        to     the      Scheduled<\/p>\n
    Areas,<\/p>\n
               once Part IX is extended to the Scheduled Areas,<\/p>\n
    by PESA.\n<\/p>\n
    .         The        applicability         of Part IX to the                Scheduled<\/p>\n
    Areas     in     the       modified form, seems to have                   been        felt<\/p>\n
    necessary,       because         the     areas    declared           as     Scheduled<\/p>\n
    Areas,         are     the      areas      having       majority          of      tribal<\/p>\n
    population and, therefore, the reservation applicable at<\/p>\n
    the election for Panchayats in Scheduled Area, should be<\/p>\n
    such     that        majority members to be elected would                        be     of<\/p>\n
    Scheduled            Tribes.        It    is     also     desired          that        all<\/p>\n
    Chairpersons          of     the      Panchayats at all            levels        should<\/p>\n
    belong to Scheduled Tribe, because the Scheduled Area is<\/p>\n
    so      declared        by      the      President,       after         taking        into<\/p>\n
    consideration          that the majority population of the                           area<\/p>\n
    is tribal population.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                       (36)<\/span><\/p>\n
    .          Now        we are required to consider and compare the<\/p>\n
    provisions           of     PESA on one hand and the               provisions           of<\/p>\n
    ZPPS     Act and 1996 Rules on the other hand.                            Provisions<\/p>\n
    of     ZPPS Act (Sections 12 (2)(b) and 58(1-B)(b)                             provide<\/p>\n
    reservation           for        Scheduled Castes, Scheduled Tribes                     as<\/p>\n
    per     population           ratio       and   reserved seats           are      to     be<\/p>\n
    allotted        to        different constituencies by rotation.                         By<\/p>\n
    virtue     of        first proviso to said Sections of ZPPS                          Act,<\/p>\n
    where     entire           area     of a Panchayat is          scheduled           area,<\/p>\n
    there     is provision for reservation of not less than one<\/p>\n
    half of the total number of seats in favour of Scheduled<\/p>\n
    Tribes.         For the reasons discussed hereinabove, we have<\/p>\n
    already     held<\/p>\n
                               that     silence     of Section         4(g)       of      PESA<\/p>\n
    regarding        rotation policy and one third reservation for<\/p>\n
    women     does not amount an exception.                     In other words, we<\/p>\n
    are     unwilling           to     accept the silence as             amounting          to<\/p>\n
    elimination           of     applicability of those requirements                        as<\/p>\n
    contained in Article 243-D.                    The requirement of rotation<\/p>\n
    of reserved seats of Sections 12(2) and 58(1-B(b) cannot<\/p>\n
    be said to be conflicting with provisions of PESA.\n<\/p>\n
    .          However,          State       Government by two proviso,                   has<\/p>\n
    categorised the Panchayats into two categories (1) where<\/p>\n
    entire     Panchayat             area is scheduled area and (2)                    where<\/p>\n
    Panchayat        area        is only partially scheduled area.                        The<\/p>\n
    second     proviso           was     under      strong      exception          by     the<\/p>\n
    petitioners           as also the Union.           It lays down that where<\/p>\n
    entire area of the Panchayat is not a declared Scheduled<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                      (37)<\/span><\/p>\n
    area,        or where only part of the territory of                      Panchayat<\/p>\n
    is     Scheduled area, reservation of seats shall be as per<\/p>\n
    clause       (b) i.e.           as per population ratio and clause (b)<\/p>\n
    does     not make any provision for “not less than one half<\/p>\n
    of     the     total       number       of    seats   as    reservation               for<\/p>\n
    Scheduled          Tribes”.       The second proviso, therefore, must<\/p>\n
    be     said to be in conflict with first proviso to Section<\/p>\n
    4(g)     of     PESA.       State legislation has           created         similar<\/p>\n
    distinction          as     regards reservation of offices                  of        the<\/p>\n
    Chairpersons for the purpose of Panchayats having entire<\/p>\n
    area     declared as scheduled area and Panchayats                          wherein<\/p>\n
    only     part       of the area is declared scheduled area.                            On<\/p>\n
    reference          to<\/p>\n
                              Sections      42 and 67 of the ZPPS              Act,        as<\/p>\n
    modified by amendment dated 3.1.1997, proviso to Section<\/p>\n
    42(4)(a)        relating         to President and Vice            President           of<\/p>\n
    Zilla        Parishad and proviso to Section 67(5)(a) relating<\/p>\n
    to     Chairman         of Panchayat Samiti are            also      identically<\/p>\n
    worded       and        those     can be reproduced hereinbelow                  in     a<\/p>\n
    combined form;\n<\/p>\n
                 “Provided          that    the office of the President                   of<\/p>\n
                 Zilla        Parishad (the Chairperson of a                 Panchayat<\/p>\n
                 Samiti)       comprising entirely the Scheduled Areas<\/p>\n
                 shall be reserved only for the persons belonging<\/p>\n
                 to the Scheduled Tribes.\n<\/p><\/blockquote>\n
                 Provided           further      that   the     office         of         the<\/p>\n
                 President          of Zilla Parishad (of the Chairperson<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (38)<\/span><\/p>\n
               of a Panchayat Samiti) falling only partially in<\/p>\n
               the        Scheduled          Areas shall be reserved for                    the<\/p>\n
               persons           belonging      to the Scheduled               Tribes        in<\/p>\n
               accordance with the provisions of clause (a).”\n<\/p><\/blockquote>\n
    and     clauses (a) of both Sections prescribe                           reservation<\/p>\n
    of the offices of Presidents\/ Chairpersons in accordance<\/p>\n
    with population ratio.\n<\/p>\n
    .          It        needs     no elaborate discussion                  that      second<\/p>\n
    proviso         quoted        hereinabove          as     applicable           to       the<\/p>\n
    reservation           to     the     offices       of    Chairpersons           of      the<\/p>\n
    Panchayat containing only part area as Scheduled Area is<\/p>\n
    in conflict with second proviso to Section 4(g).\n<\/p>\n
    .          Coming to 1996 Rules, Rules 3 and 7 enable State<\/p>\n
    Election        Commission to determine the number of seats to<\/p>\n
    be    reserved         for     Scheduled Castes\/             Scheduled          Tribes\/<\/p>\n
    Other     Backward Classes and women at Zilla Parishads and<\/p>\n
    Panchayat        Samitis elections but as provided in Sections<\/p>\n
    12(2)     and        58(1-B)        respectively.        Rules 4         and        8   are<\/p>\n
    relating        to     manner of allotment and rotation of                           seats<\/p>\n
    reserved        for        Scheduled Castes and Scheduled Tribes                         at<\/p>\n
    Zilla      Parishads               and     Panchayat       Samitis           elections<\/p>\n
    respectively           and     these       rules        prescribe        that        seats<\/p>\n
    reserved for Scheduled Castes and Scheduled Tribes shall<\/p>\n
    be    allotted         to     electoral divisions\/ colleges                     in      the<\/p>\n
    descending           order begining with division\/ college                          where<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (39)<\/span><\/p>\n
    population of such Scheduled Castes\/ Scheduled Tribes is<\/p>\n
    highest.         Sub-rule (2) requires that seats reserved for<\/p>\n
    Scheduled       Castes and Scheduled Tribes to be rotated                           in<\/p>\n
    the subsequent general elections to electoral divisions\/<\/p>\n
    colleges in which no seats were reserved in the previous<\/p>\n
    general elections.            We are unable to see any conflict of<\/p>\n
    these        two rules with the provisions of PESA, especially<\/p>\n
    so     when     we   have already observed that                PESA       has       not<\/p>\n
    excepted “rotation” of reserves seats.\n<\/p>\n
    .            Proviso to sub-rule (2) of Rule 14 reads thus :\n<\/p>\n
                 “Provided
\n                            ig    that,       with   a    view       to       securing<\/p>\n
                 representation          to the members of such castes or<\/p>\n
                 tribes,     in    as many blocks as possible                    in     the<\/p>\n
                 districts, the seats may be rotated to electoral<\/p>\n
                 divisions so however that not more than one seat<\/p>\n
                 is reserved in any one block.”\n<\/p><\/blockquote>\n
    (and     it     is   monopoly        of   Rule 4,     there        is     no       such<\/p>\n
    provision       to sub-rule (2) of Rule 8 for obvious reasons<\/p>\n
    that on collective reading of Sections 2(3), 5 and 56 of<\/p>\n
    ZPPS Act, one Panchayat Samiti is one block).                           By virtue<\/p>\n
    of     this proviso, at the Zilla Parishad election,                           there<\/p>\n
    can     be     reservation      of     only one      seat      for      Scheduled<\/p>\n
    Castes\/       Scheduled       Tribes per block\/ Panchayat                  Samiti.\n<\/p>\n
    The     proviso      conflicts        with the requirement              of        first<\/p>\n
    proviso to Section 4(g) of PESA.                 Not less than one half<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (40)<\/span><\/p>\n
    (50%)     seats     are required to be reserved for                        Scheduled<\/p>\n
    Tribes     category,          as per PESA and if only one                   seat        is<\/p>\n
    allowed     to     be reserved per Panchayat Samiti                        at        Zilla<\/p>\n
    Parishad        elections       for        Scheduled      Castes\/          Scheduled<\/p>\n
    Tribes,     even if there are only two seats per                           Panchayat<\/p>\n
    Samiti, reservation for Scheduled Tribe is bound to fall<\/p>\n
    below 50%.\n<\/p>\n
    .          To     sum up, the provisions of ZPPS Act and                             1996<\/p>\n
    Rules     are     in    conflict with Section 4(g)                   of     PESA        on<\/p>\n
    following points :\n<\/p>\n
               (i)<\/p>\n
                            To the extent second proviso to Sections<\/p>\n
               12(2)        (b)     and    58(1-B)(b)           do      not         provide<\/p>\n
               reservation          for    Scheduled Tribes of                not        less<\/p>\n
               than     one       half of the total number of seats                        in<\/p>\n
               the     Panchayat.          (Where      entire           area        of     the<\/p>\n
               Panchayat is not declared a scheduled area),<\/p>\n<\/blockquote>\n
               (ii)         to the extent second proviso to Sections<\/p>\n
               42(4)(a) and 67(5)(a) do not provide reservation<\/p>\n
               of     all     the    offices of Chairpersons                   only       for<\/p>\n
               Scheduled Tribes (where entire area of Panchayat<\/p>\n
               is not declared scheduled area) and<\/p>\n<\/blockquote>\n
               (iii)        proviso       to    Rule   4(2)        of     1996           Rules<\/p>\n
               conflicts        with the requirement of                  “reservation<\/p>\n
               of not less than one half of the total number of<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                 (41)<\/span><\/p>\n
                seats for Scheduled Tribes”.\n<\/p><\/blockquote>\n
    10.         In order to find out the reasons for conflict or<\/p>\n
    legal battle, we may hypothetically consider three types<\/p>\n
    of Panchayats;\n<\/p>\n
                (i).       Where   entire area of Panchayat is                      free<\/p>\n
                from       Presidential     Declaration             (No      part      of<\/p>\n
                Panchayat Area is declared as Scheduled Area).\n<\/p><\/blockquote>\n
                (ii).      Where   entire Panchayat Area is declared<\/p>\n
                Scheduled Area.\n<\/p><\/blockquote>\n
                (iii).     Where       Panchayat   Area           is       partially<\/p>\n
                declared as Scheduled Area.\n<\/p><\/blockquote>\n
    .           In      case of first type of Panchayat, Part IX                       of<\/p>\n
    the Constitution applies by itself and PESA would not be<\/p>\n
    in    the     picture.      In case of second type of                 Panchayat,<\/p>\n
    where       entire area of Panchayat is declared as Scheduled<\/p>\n
    Area,       only     PESA would operate and provisions of                     State<\/p>\n
    legislation         (ZPPS Act), if in conflict with PESA, would<\/p>\n
    be      inapplicable.          However,        in        the          discussion<\/p>\n
    hereinabove,         we    have arrived at a conclusion that                     the<\/p>\n
    provisions of ZPPS Act, as applicable to Panchayat where<\/p>\n
    entire       area     is   declared    as Scheduled           Area,       do     not<\/p>\n
    conflict with PESA.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (42)<\/span><\/p>\n
    .          The      problem       arises     when the     authorities           are<\/p>\n
    required      to        conduct    the elections of        the      Panchayats<\/p>\n
    wherein part area is declared as Scheduled Area and part<\/p>\n
    area    is     not       so    declared.      Admittedly,        Dhule        Zilla<\/p>\n
    Parishad      and        Nandurbar Zilla Parishad, which                are     the<\/p>\n
    Panchayats         of     the highest level, are          such      Panchayats<\/p>\n
    wherein      entire        area    is not declared to          be     Scheduled<\/p>\n
    area.        In other words, only part area of these                     highest<\/p>\n
    Panchayats         is     declared     Scheduled Area.         In     fact,       on<\/p>\n
    reference        to Scheduled Areas (Maharashtra) Order, 1985,<\/p>\n
    following        position        emerges,     so far as      Panchayats           at<\/p>\n
    district      levels          (Zilla   Parishad)    and      Panchayats           at<\/p>\n
    Taluka level (Panchayat Samiti) are concerned.\n<\/p>\n
    ——————————————————–\n<\/p>\n
    Dhule Zilla Parishad                     – Part area-Scheduled Area.<\/p>\n
\n\n    Dhule Panchayat Samiti.                  - No Scheduled Area\n      \n\n\n                             Sindhkheda      - No Scheduled Area\n   \n\n\n\n                             Sakri           - Partly Scheduled Area\n\n                             Shirpur         - Partly Scheduled Area\n\n\n\n\n\n<\/pre>\n
    ——————————————————-\n<\/p>\n
    Nandurbar        Zilla        Parishad     – Part area Scheduled Area.\n<\/p>\n
    Nandurbar        Panchayt Samiti           – Partly Scheduled           Area.\n<\/p>\n
                             Shahada         - Partly Scheduled             Area.\n\n\n\n\n\n                             Nawapur         - Entire Scheduled             Area.\n\n                             Taloda          - Entire Scheduled             Area.\n\n                             Akkalkuwa       - Entire Scheduled             Area.\n\n                             Akrani          - Entire Scheduled             Area.\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:02:15 :::<\/span>\n                                         (43)<\/span>\n\n<\/pre>\n
    ——————————————————–\n<\/p>\n
    .            While          amending           Sections 12 and 58, as also                         42<\/span><\/p>\n
    and     67 of ZPPS Act with effect from 3.1.1997, the State<\/p>\n
    of    Maharashtra              seems to have taken a note of the                                 fact<\/p>\n
    that as a result of declaration of Scheduled area, there<\/p>\n
    are     Panchayats             in        the    State,         wherein         there          is     a<\/p>\n
    Scheduled Area as their parts, although entire Panchayat<\/p>\n
    area is not declared as Scheduled Area.                                  On reference to<\/p>\n
    Section       4(g) of PESA, which is the only part of the Act<\/p>\n
    as      applicable              to        elections            of       Panchayats                 and<\/p>\n
    reservations at such elections, it is evident that there<\/p>\n
    is      no    express
\n                                  igindication               of   cognizance               of        such<\/p>\n
    eventuality i.e.                existence of Panchayats, area of which<\/p>\n
    is    partly           Scheduled Area and partly not                         so     declared.\n<\/p>\n
    However,          opening        part          of     clause      (g)      “…             in     the<\/p>\n
    Scheduled              Areas        at     every          panchayat…”            has           some<\/p>\n
    indication             of     Scheduled             Area being only part                of        the<\/p>\n
    Panchayat and for which, the modifications to Part IX of<\/p>\n
    the     Constitution             in its application to                     the      Scheduled<\/p>\n
    Area, are being adopted by Section 4(g) of PESA and more<\/p>\n
    particularly                by two provisos to the said clause (g)                                 of<\/p>\n
    Sectiion          4.         If this is taken into account,                            there       is<\/p>\n
    reason       to        feel     that           while adopting part                IX     in        its<\/p>\n
    application             to the Scheduled Area in the modified form,<\/p>\n
    the     Central             legislation,            to    some      extent;             controls<\/p>\n
    reservation             of seats as well as offices of Chairpersons<\/p>\n
    which     may          not be strictly within Scheduled Area,                                    e.g.<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                      (44)<\/span><\/p>\n
    in     Panchayat where population of Scheduled Tribe is                              30<\/p>\n
    per     cent,        by requiring not less than one-half                    of      the<\/p>\n
    total     number of seats for Scheduled Tribes, 20 per cent<\/p>\n
    seats would be required to be reserved in an area not so<\/p>\n
    declared.       “All the seats of chairpersons of Panchayats”\n<\/p>\n
    referred        to in second proviso to Section 4(g) would not<\/p>\n
    fall     in     Scheduled         Area,    if Scheduled         Area       is      only<\/p>\n
    part\/small           part of entire area of Panchayat.                   Thus, the<\/p>\n
    way     the second proviso to Section 12(2)(b) and                          Section<\/p>\n
    58     (1-B)(b), as also 42 (4) (a) and 67 (5) (a) of                              ZPPS<\/p>\n
    Act,     seem        to     treat part of the area          of      a     Panchayat<\/p>\n
    declared        as        Scheduled     Area, at par with area              not      so<\/p>\n
    declared,        the<\/p>\n
                                Central     legislation also          seems       to     be<\/p>\n
    invading        in        the   area not declared as          Scheduled            Area<\/p>\n
    while         extending         applicability    of        part      IX     of      the<\/p>\n
    Constitution           to Scheduled Area, in its modified form by<\/p>\n
    Section 4(g) of PESA.\n<\/p>\n
    11.        Naturally,           the question that is required to                     be<\/p>\n
    considered           wold be, what happens when PESA and ZPPS Act<\/p>\n
    read     with        1996 rules conflict.        Upon       reading         Article<\/p>\n
    243-D (4)(b), it is evident that only the Parliament has<\/p>\n
    legislative competence to provide application of part IX<\/p>\n
    with exceptions and modifications as may be specified in<\/p>\n
    the     law     providing         application    of        part      IX     to      the<\/p>\n
    Scheduled        Areas.          It must be said that clause                (4)      of<\/p>\n
    Article       243-M         is very strongly worded, since it                   opens<\/p>\n
    with      non-obstante            clause    “Notwithstanding               in     this<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                      (45)<\/span><\/p>\n
    Constitution.”             and sub clause (b) ends with “…and                       no<\/p>\n
    such     law        shall    be       deemed to   be    amendment            of     this<\/p>\n
    Constitution           for    the purpose of Article 368.”.\n<\/p>\n
                                                         368.\"                     It     is\n\n    felt     that        the    manner in which clause (4)                of     Article\n\n\n\n\n                                                                                     \n    243-M     is        worded, it empowers the Parliament to make                          a\n\n\n\n\n                                                           \n    law     which        may even be in conflict with                provisions           of\n\n<\/pre>\n
    part IX, while extending applicability of IX part to the<\/p>\n
    Scheduled           Area    and yet such provisions are not                    to     be<\/p>\n
    deemed     an amendment of the Constitution for the purpose<\/p>\n
    of Article 368.             The State legislature lacks legislative<\/p>\n
    competence,           so far as extension of IX part to Scheduled<\/p>\n
    area     is     concerned         and, therefore, the            provisions           of<\/p>\n
    State     legislation,
\n                                ig    which conflict with PESA, would                     be<\/p>\n
    inapplicable.\n<\/p>\n
    .         Advocate           Shri S.T.Shelke for the State Election<\/p>\n
    Commission referred to paragraph 5 of Fifth Schedule and<\/p>\n
    desired        us     to    examine whether the amendments                   to     the<\/p>\n
    provisions of ZPPS Act can be said to have been effected<\/p>\n
    in     exercise of powers conferred by said paragraph 5                               of<\/p>\n
    Fifth Schedule.             The said provision reads thus;\n<\/p>\n
              “.               Law    applicable      to      Scheduled          Areas:-\n<\/p><\/blockquote>\n
              (1).             Notwithstanding        anything              in         this<\/p>\n
              Constitution,                the   Governor        may      ‘by      public<\/p>\n
              notification’               direct that any particular Act of<\/p>\n
              Parliament             or    of the Legislature of the                  State<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                       (46)<\/span><\/p>\n
                  shall        not apply to a Scheduled Area or any part<\/p>\n
                  thereof       in     the   State    or    shall         apply       to    a<\/p>\n
                  Scheduled       Area or any part thereof in the State<\/p>\n
                  subject       to such exceptions and modifications as<\/p>\n
                  he     may     specify     in the      notification           and     any<\/p>\n
                  direction       given under this sub-paragraph may be<\/p>\n
                  given so as to have retrospective effect.”\n<\/p><\/blockquote>\n
    .             Governors       of     State    thus     seem      to     have       been<\/p>\n
    empowered           to obstruct or resume the application of                        any<\/p>\n
    Act of Parliament, or that of the State legislature to a<\/p>\n
    Scheduled           Area     or    any part thereof in the              State       and<\/p>\n
    subject        to<\/p>\n
                          such exceptions or modifications as he                        may<\/p>\n
    specify.            Governor       is required to do so “by               a      public<\/p>\n
    notification’ and not with the aid of State legislation.\n<\/p>\n
    Therefore,          it may not be correct to say that amendments<\/p>\n
    to     ZPPS    Act are effected by Governor of the                        State        in<\/p>\n
    exercise of his powers conferred by paragraph 5 of Fifth<\/p>\n
    Schedule,          regarding       “administration           and      control          of<\/p>\n
    Scheduled Areas and Scheduled Tribes.”\n<\/p>\n
    .          It was not submitted on behalf of the State that<\/p>\n
    the     amendments to Sections 12\/58 and 42\/67 of ZPPS                              Act<\/p>\n
    were     in    exercise of powers conferred upon Governor                              by<\/p>\n
    paragraph          5 of the Fifth Schedule of the                  Constitution,<\/p>\n
    nor it was submitted that any such “public notification”\n<\/p>\n
    is    issued by the Governor of the Maharashtra.                            In     this<\/p>\n
    context,       the     statement         of   objects        and      reasons          in<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                  (47)<\/span><\/p>\n
    promulgating      Maharashtra            Zilla Parishad and               Panchayat<\/p>\n
    Samiti   (Extension to the Scheduled Areas and Amendment)<\/p>\n
    Ordinance,      1997        ( No.I of 1997) and more                 particularly<\/p>\n
    contents in paragraphs 2 and 3, can usefully be referred<\/p>\n
    to.\n<\/p>\n
             “2.        In       exercise of the powers conferred                         by<\/p>\n
             the     article       243-M(4)(b) of             the       Constitution,<\/p>\n
             Parliament          has    passed, the provisions                   of     the<\/p>\n
             Panchayats          (Extension         to the Scheduled               Areas)<\/p>\n
             Act     1996       (Act No.         40 of 1996), providing                 for<\/p>\n
             extension          of the provisions of the said Part IX<\/p>\n
             to      the
\n                        ig      Scheduled         Areas,      subject           to      the<\/p>\n
             exceptions          and    modifications            as      provided         in<\/p>\n
             Section        4    of the said Act.             Section 4          of     the<\/p>\n
             said      Act,        inter         alia,     provides           for       the<\/p>\n
             reservation          of seats in the Scheduled Areas                         in<\/p>\n
             any Panchayat in proportion to the population of<\/p>\n
             the     communities            in    that     Panchayat          for      whom<\/p>\n
             reservation is sought to be given under the said<\/p>\n
             Part     IX, provided that, the reservation for the<\/p>\n
             Scheduled Tribes shall not be less than one half<\/p>\n
             of the total number of seats, and also that, all<\/p>\n
             seats     of       chairpersons         of     Panchayats           at     all<\/p>\n
             levels        shall       be    reserved       for       the     Scheduled<\/p>\n
             Tribes.”\n<\/p><\/blockquote>\n
             “3.        The       general         elections        to     the         Zilla<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (48)<\/span><\/p>\n
               Parishads and Panchayat Samitis are scheduled to<\/p>\n
               be     held        sometime in the month of              February          or<\/p>\n
               March        1997.      It      is, therefore,          necessary          to<\/p>\n
               carry        out     suitable amendments, with                 immediate<\/p>\n
               effect        in     the Maharashtra Zilla Parishads                      and<\/p>\n
               Panchayat           Samitis     Act,     1961, so        as     to      give<\/p>\n
              effect         to    the said provisions of Section 4                      of<\/p>\n
              the said Act made by Parliament.”\n<\/p><\/blockquote>\n
    .         Thus,        Ordinance        and subsequent          amendments           to<\/p>\n
    ZPPS     Act     were     aimed     at     implementing         PESA       and      not<\/p>\n
    prohibiting its applicability.\n<\/p>\n
    .         Learned        standing counsel for Union referred                         to<\/p>\n
    Article        254(1) of the Constituion, for propounding that<\/p>\n
    PESA     being legislation of the Parliament, would prevail<\/p>\n
    over     provisions        of ZPPS Act and 1996 Rules and to                        the<\/p>\n
    extent     the        provisions      of    State     Act     and      Rules        are<\/p>\n
    repugnant        to     the    provisions of PESA, shall                 be     void.\n<\/p>\n
    With     due     respect, reference to Article 254 (1) is                           not<\/p>\n
    necessary.            The said Article deals with the legislation<\/p>\n
    enacted        by the Parliament and the State legislature                           in<\/p>\n
    their     legislative competence, flowing from the lists as<\/p>\n
    contained         in     the     Seventh      Schedule          (Union             list,<\/p>\n
    Concurrent        list     and     State     list).         Part     IX       of     the<\/p>\n
    Constitution          having     come into force only in                 the       year<\/p>\n
    1993, is not included in either of the three lists.                                 The<\/p>\n
    legislative        competence         in    favour     of     the      Parliament<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (49)<\/span><\/p>\n
    arises     by virtue of Article 243-M(4)(b, which indicates<\/p>\n
    that     only     Parliament can legislate for                       extending          the<\/p>\n
    provisions         of     Part      IX    of    the        Constitution,               with<\/p>\n
    exceptions       and      modifications, to the                  Scheduled           Area.\n<\/p>\n
    Naturally, the provisions of State legislation and Rules<\/p>\n
    controlling allotment of seats and reservations, as also<\/p>\n
    reservations       for        offices     of chairpersons, so                    far      as<\/p>\n
    Scheduled        Area is concerned, will have to be deemed                                to<\/p>\n
    be      void,     in     the      light        of    existence           of      Central<\/p>\n
    legislation-PESA             in   the field.         Although we felt                  that<\/p>\n
    there     may be occasions when compliance of first proviso<\/p>\n
    to     Section     4(g)       may     be invading upon               the       area     not<\/p>\n
    declared<\/p>\n
                    as Scheduled Area, by reservation of seats for<\/p>\n
    Scheduled        Tribes in that area.               Similarly,            reservation<\/p>\n
    of     all offices of the chairpersons of the Panchayats at<\/p>\n
    all     level for Scheduled Tribes as prescribed by                                second<\/p>\n
    proviso     to     Section 4(g) also invades in the                            area     not<\/p>\n
    declared        as Scheduled Area.             However, since, so far, no<\/p>\n
    such     legal     challenge          is successfully set                 up     against<\/p>\n
    those     two provisos to Section 4(g) of PESA, those                                  will<\/p>\n
    have      to      be         implemented.           Moreover,            legislations<\/p>\n
    providing          reservation            for          SC\/ST,            which          are<\/p>\n
    Constitutional          reservations, need to be interpreted                              in<\/p>\n
    favour      of         the     reservation           and      not      against          the<\/p>\n
    reservations.\n<\/p>\n
    12.        The    contention          of the State that it has                       fully<\/p>\n
    implemented         the       provisions        of     PESA            by       suitable<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (50)<\/span><\/p>\n
    amendments        to     ZPPS Act, is not sustainable in view                         of<\/p>\n
    the     conclusions regarding provisions of ZPPS Act                             being<\/p>\n
    in     conflict        with Section 4(g) of PESA.                 if the        second<\/p>\n
    proviso     referred         from     4   sections           of     ZPPS     Act      as<\/p>\n
    applicable        to     the       Panchayats, wherein            part      area      is<\/p>\n
    scheduled        area     are      to be ignored being             repugnant          to<\/p>\n
    PESA.      The        first proviso to the extent they                    refer       to<\/p>\n
    Panchayats        where       entire area is declared as                  scheduled<\/p>\n
    area,     the        propriety of existence of word                  “entire”         is<\/p>\n
    required        to     be re-examined, in view of the                    fact      that<\/p>\n
    PESA     does not specifically refer by distinction amongst<\/p>\n
    the      Panchayats          where     entire        area     is     declared         as<\/p>\n
    Scheduled Area and Panchayats where only part of area is<\/p>\n
    declared as Scheduled Area.\n<\/p>\n
    .          It,       therefore, appears desirable that there                          is<\/p>\n
    dialogue        between       State and the Union to               resolve         this<\/p>\n
    discrepancy.            After all the Courts cannot direct either<\/p>\n
    Government to legislate in a particular manner.\n<\/p>\n
    .          In        para 3 of reply filed by Shri Rajiv Pande on<\/p>\n
    behalf     of        State Election Commission, it                 is     contended<\/p>\n
    that     State        Election Commission is not responsible                        for<\/p>\n
    implementing           provisions      of PESA.       We are         afraid        once<\/p>\n
    Part     IX is made applicable also to the Scheduled Areas,<\/p>\n
    with     exceptions          and     modifications, by PESA,                such      an<\/p>\n
    approach        is     not     permissible      to     the        State     Election<\/p>\n
    Commission           in view of Article 243-K(1), which vests the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                       (51)<\/span><\/p>\n
    superintendence,                 direction         and        control           of      the<\/p>\n
    preparation of electoral roll for, and on the conduct of<\/p>\n
    all     elections           to     the     Panchayats       in     State        Election<\/p>\n
    Commission.               The     provision       of     PESA      to     the        extent<\/p>\n
    applicable              to the elections of Panchayats are                      required<\/p>\n
    to     be        implemented        by the Election Commission                   in     the<\/p>\n
    field.<\/p>\n
\n\n\n\n\n                                                              \n    .            Senior Counsel Shri P.M.                  Shah submitted that in\n\n    order        to     resolve the dispute, the possibility                         may      be\n\n    examined           if     Panchayats wherein part area                   is     declared\n\n\n\n\n                                                \n    Scheduled           Area        can be considered for elections as                      two\n\n    zones,        Scheduled\n                                ig    Area being governed by PESA                   and     the\n\n    remaining           area by State Legislation.                  In the discussion\n                              \n    hereinabove,              we have taken a note that PESA though does\n\n    not     expressly           distinguish          between      Panchayats           having\n\n<\/pre>\n
    entire area as scheduled area and Panchayats having part<\/p>\n
    area        as     Scheduled        Area, opening part             of     clause        (g)<\/p>\n
    indicates               awareness     about        existence         of       Panchayats<\/p>\n
    wherein           only     part     area     is Scheduled          Area.         Yet      is<\/p>\n
    prescribes              reservation       of more than 50% seats                 of     the<\/p>\n
    total        number        of     seats     in     the     Panchayat           area     for<\/p>\n
    Scheduled           Tribes, as also reservation of all offices of<\/p>\n
    Chairpersons              for     Scheduled Tribes.           The invasion             that<\/p>\n
    may     occur           in the area not declared Scheduled area,                          to<\/p>\n
    some        extent while implementing Section 4(g) of PESA may<\/p>\n
    not     permit           us to accede to the proposition of                      learned<\/p>\n
    Senior Counsel.                 Moreover, Sections 6 and 56 of ZPPS Act<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (52)<\/span><\/p>\n
    require     establishment             of     a Zilla Parishad           for      every<\/p>\n
    district         and        Panchayat       Samiti    for         every         block.\n<\/p>\n
    Constitution           of districts and blocks is the function of<\/p>\n
    the     State     Government by virtue of Sections 4 and 5                            of<\/p>\n
    ZPPS     Act.      The        Court,        therefore,      cannot          consider<\/p>\n
    issuance        of direction to treat Scheduled Area and other<\/p>\n
    areas as separate zones thereby practically creating two<\/p>\n
    Zilla     Parishads          or two Panchayat Samitis in                  the      same<\/p>\n
    district\/ block.<\/p>\n
\n\n\n\n    13.        Realising          that     if     this    Court        upholds          the\n\n\n\n\n                                               \n    contentions        of the petitioners, it may issue directions\n\n    requiring        the\n                             ig State Election Commission to                bring       the\n\n    reservations           at     the ensuing elections in harmony                     with\n                           \n    provisions        of        PESA, both counsel for intervenors                     have\n\n    relied     upon Article 243-O of the Constitution of                             India\n\n    and     claimed        that     it     is     too    late    to      correct        the\n      \n\n\n    irregularity\/           illegality.         They have, therefore, prayed\n   \n\n\n\n<\/pre>\n
    that the directions that may be issued by this Court may<\/p>\n
    be     ordered     to        be implemented at        the      next       election.\n<\/p>\n
    Article 243-O reads thus :\n<\/p>\n
               “243-O. Bar           to        interference      by       courts          in<\/p>\n
               electoral          matters.- Notwithstanding anything in<\/p>\n
               this Constitution.-\n<\/p><\/blockquote>\n
               (a).         The     validity of any law relating to the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                               (53)<\/span><\/p>\n
             delimitation          of constituencies or the allotment<\/p>\n
             of     seats     to    such     constituencies,            made        or<\/p>\n
             purporting to be made under Article 243-K, shall<\/p>\n
             not be called in question in any court.”\n<\/p><\/blockquote>\n
    .        The     discussion of reasons hereinabove,                    clearly<\/p>\n
    indicates      that     although petitioners have come                 with       a<\/p>\n
    prayer for directions to implement PESA, for the purpose<\/p>\n
    they have challenged applicability of certain provisions<\/p>\n
    of     ZPPS     Act,      relating       to    allotment          of       seats<\/p>\n
    (reservation).          Impliedly,     they have        also      challenged<\/p>\n
    allotment      of seats, although the grievance can be                       said<\/p>\n
    to be of less number of seats being awarded to Scheduled<\/p>\n
    Tribe category, than required under PESA.\n<\/p>\n
    .        Advocate Shri Shelke for the Election Commission<\/p>\n
    has   submitted       that the State Election            Commissioin            is<\/p>\n
    likely to declare election programme on 10.11.2008.                           We,<\/p>\n
    therefore,      can     infer that exercise of delimitation                     of<\/p>\n
    the   constituencies and allotment of seats is already in<\/p>\n
    progress, nearing completion or may be even completed.\n<\/p>\n
    .        Although        both      the        learned        counsel          for<\/p>\n
    intervenors-respondents          have challenged maintainability<\/p>\n
    of    the writ petition, such challenge is mainly set                         up,<\/p>\n
    by    relying upon clause (b) of Article 243-O and not                          by<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (54)<\/span><\/p>\n
    relying        upon     the nature of challenge described                      by    us<\/p>\n
    hereinabove.            It was contended by both of them that                        it<\/p>\n
    is     too late for this court to interfere and, therefore,<\/p>\n
    directions,           if any, may be ordered to be complied with,<\/p>\n
    only    for the next election.               Interference of the                court<\/p>\n
    in the election process was thus opposed.\n<\/p>\n
    .         Advocate           Shri    Patil   for Respondent              No.8       has<\/p>\n
    placed reliance upon judgment of the Hon’ble the Supreme<\/p>\n
    Court     in     the matter of Boddula Krishnaiah and                         another<\/p>\n
    versus State Election Commissioner, Andhra Pradesh, 1996<\/p>\n
    (3)    SCC 416.        Ratio laid down by the judgment is summed<\/p>\n
    up in the head note titled as “important point”.\n<\/p>\n
              ”     Once     an    election process has               been        set    in<\/p>\n
              motion,        though the High Court may entertain                         or<\/p>\n
              may have already entertained a writ petition, it<\/p>\n
              would        not    be    justified     in       interfering            with<\/p>\n
              election        process      giving         direction          to     state<\/p>\n
              (stay)        the    proceedings       or        to     conduct           the<\/p>\n
              election        process      a fresh, in          particular            when<\/p>\n
              election        had already been held, in which voters<\/p>\n
              were        allegedly      prevented    to        exercise            their<\/p>\n
              franchise          and remedy could be prosecuted                     under<\/p>\n
              the Acts and Rules.”\n<\/p><\/blockquote>\n
    .         In the reported matter, the election was held on<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (55)<\/span><\/p>\n
    27.6.1995        and        although    High Court, by        interim         order<\/p>\n
    dated     26.6.1995,          directed    to    allow       94     persons         to<\/p>\n
    participate        in       the election, on the date of poll                   they<\/p>\n
    could     not     exercise their franchise.              By interim           order<\/p>\n
    dated     6.7.1995, direction was issued by High Court                           not<\/p>\n
    to     declare     result of election of Gram Panchayat, in                          a<\/p>\n
    writ     petition           by some of them, seeking          directions           to<\/p>\n
    permit them to exercise their franchise.<\/p>\n
\n\n\n\n\n                                                       \n    .          The     other reported judgment [2000 (8) SCC                        216]\n\n    relied     upon        by learned Advocate Shri P.S.               Patil,        has\n\n\n\n\n                                            \n    considered        the leading cases on the subject,                    regarding\n\n    interference           by\n                             ig   the High Courts in       electoral          mattes,\n\n    begining from N.P.Ponnuswami vs.                The Returning Officer,\n                           \n    Namakkal        (AIR<\/a>        1952   SC    64)   to    C.Subrahmanyam              vs.\n\n<\/pre>\n
    K.Ramanjaneyullu and others 1998 (8) SCC 703.\n<\/p>\n
                                             703                           We intend\n\n    to     reproduce       certain observations from              this       reported\n      \n\n\n    judgment       in the matter of Election Commission of                        India\n   \n\n\n\n    through    Secretary vs.           Ashok Kumar and Others<\/a> [2000 (8)\n\n    SCC    216].\n           216]      In this matter, interim order passed by                         the\n\n\n\n\n\n    High    Court     in exercise of its writ jurisdiction                        under\n\n    Article    226 of the Constitution, whereby it had                          stayed\n\n    the    notification           by the Election Commission of                 India,\n\n<\/pre>\n
    containing directions as to the manner of counting votes<\/p>\n
    and making further directions of its own on the subject,<\/p>\n
    was stayed by the Supreme Court.               By the time the matter<\/p>\n
    came    up for final hearing before the Supreme Court, the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (56)<\/span><\/p>\n
    counting         had      taken     place     in    accordance            with         the<\/p>\n
    notification         dated 28.9.1999 that was challenged before<\/p>\n
    the    High Court and the appeals had become                           infructuous.\n<\/p>\n
    However,       at      the insistence of the learned counsel                           for<\/p>\n
    appellants,         who      submitted that the issue                  arising         for<\/p>\n
    decision       in      the    appeals       was    of     wide       significance,<\/p>\n
    inasmuch       as several writ petitions are filed before the<\/p>\n
    High     Court, seeking interim directions interfering with<\/p>\n
    the    election         proceeds and, therefore, it would                         be    in<\/p>\n
    public     interest,         if the court may pronounce                     upon       the<\/p>\n
    merits of the issue arising for decision in the appeals;<\/p>\n
\n\n\n\n\n                                           \n    the    Hon'ble         the    Supreme Court proceeded to                    hear       and\n\n    decide     the\n                            \n                        appeals on merits.             Naturally, the              Hon'ble\n\n    Apex      Court      was     considering           the        issue         regarding\n                           \n    jurisdiction         of      the High Court to entertain                    petitions\n\n    under     Article       226    of the Constitution                 and      to      issue\n\n    interim    directions after commencement of the                             electoral\n      \n\n\n    process.\n   \n\n\n\n    .         No     doubt, it was a matter wherein objections to\n\n\n\n\n\n    passing    of       orders     by     the High Court             was      raised        by\n\n    relying    upon Article 329 of the Constitution.                              However,\n\n    Article    243-O        is    pari-materia with Article                     329      and,\n\n    therefore,       law      laid down by the Hon'ble Apex Court                           in\n\n\n\n\n\n    the    matter       relied     upon     by learned            counsel         for      the\n\n<\/pre>\n
    intervenors-respondents, would be squarely applicable to<\/p>\n
    the matter at hands.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                  (57)<\/span><\/p>\n
    .        The      observations             in             the        matters         of\n\n    N.P.Ponnuswami     and Mohinder Singh Gill, are                        considered\n\n    and   dealt    with     in    paras 18 to            21     of       the    reported\n\n\n\n\n                                                                                  \n    judgment.      Both     earlier       decisions rendered                   were    the\n\n\n\n\n                                                          \n<\/pre>\n
    decisions by the Constitution Bench.\n<\/p>\n
            “.         The       plenary     power of Article                  329     has<\/p>\n
            been     stated       by     the Constitution Bench                   to     be<\/p>\n
            founded       on two principles;               (1) the         peremptory<\/p>\n
            urgency       of     prompt     engineering              of     the       whole<\/p>\n
            election           process              without               intermediate<\/p>\n
            interruptions           by     way      of     legal           proceedings<\/p>\n
            challenging          the steps and stages in between the<\/p>\n
            commencement          and    the        conclusions;                (2)    the<\/p>\n
            provision of a special jurisdiction which can be<\/p>\n
            invoked       by an aggrieved party at the end of the<\/p>\n
            election      excludes         other         form, the         right       and<\/p>\n
            remedy        being         creatures          of        statutes           and<\/p>\n
            controlled by the Constitution.”\n<\/p><\/blockquote>\n
    .       Following        observations           from        Mohinder             Singh<\/p>\n
    Gill’s case are reproduced.\n<\/p>\n
            “.         Having regard to the important functions<\/p>\n
            which     the      legislatures          have           to     perform       in<\/p>\n
            democratic           countries,         it        has        always        been<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                             (58)<\/span><\/p>\n
        recognized          to        be a matter of first                  importance<\/p>\n
        that     elections should be concluded as early                                   as<\/p>\n
        possible        according           to     time schedule               and     all<\/p>\n
        controversial               matters and all disputes                    arising<\/p>\n
        out    of elections should be postponed till after<\/p>\n
        the    elections              are over, so that               the      election<\/p>\n
        proceedings             may       not     be      unduly        retarded          or<\/p>\n
        protracted.             ”\n<\/p><\/blockquote>\n
        (2).       In       conformity with this principle,                            the<\/p>\n
        scheme        of the election law in this country,                                as<\/p>\n
        well     as        in       England, is that            no      significance<\/p>\n
        should
\n                   ig be     attached to anything which does                           not<\/p>\n
        affect        the       election and if any                 irregularities<\/p>\n
        are    committed while it is in progress and                                  they<\/p>\n
        belong        to the category or class which under the<\/p>\n
        law    by which the elections are governed,                                 would<\/p>\n
        have     the effect of vitiating the “election” and<\/p>\n
        enable        the       person          affected       to     call      it        in<\/p>\n
        question,          they       should be brought up                   before        a<\/p>\n
        special       tribunal             by     means        of     an       election<\/p>\n
        petition        and         not     be     made the          subject         to    a<\/p>\n
        dispute       before any court while the election                                 is<\/p>\n
        in progress.”\n<\/p><\/blockquote>\n
    .   Following are the observations in paragraph 20;\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (59)<\/span><\/p>\n
               “.           A     Reading of Mohinder Singh Gill’s case<\/p>\n
               points out that there may be a few controversies<\/p>\n
               which        may not attract the wrath of Article                         329<\/span><\/p>\n<\/blockquote>\n
               (b).     To wit;          (i) power vested in a functionary<\/p>\n
               like     the Election Commission is a trust and                             in<\/p>\n
               view     of       the     same having been vested                 in     high<\/p>\n
               functionary             can    be expected to          be     discharged<\/p>\n
               reasonably,             with    objectivity and            independence<\/p>\n
               and     in       accordance with law.             The       possibility,<\/p>\n
               however,           cannot       be   ruled        out        where        the<\/p>\n
               repository          of power may act in breach of law or<\/p>\n
               arbitrarily or mala fide.                  (ii) A dispute raised<\/p>\n
               may     not       amount        to    calling       in      question        an<\/p>\n
               election,          if     it subserves the progress of                    the<\/p>\n
               election          and     facilitates         the       completion          of<\/p>\n
               election.”\n<\/p><\/blockquote>\n
    .          In     paragraph 21 of the judgment, the court                            has<\/p>\n
    observed        third       category of cases, which may                   call      the<\/p>\n
    court    to      interfere          in the electoral           process        and      we<\/p>\n
    quote;\n<\/p>\n
               \".           So     also       there may be cases             where       the\n\n\n\n\n\n               relief           sought        for   may     not         interfere          or\n\n<\/pre>\n
               intermeddle with the process of the election but<\/p>\n
               the     jurisdiction            of the court is sought to                   be<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (60)<\/span><\/p>\n
               invoked        for correcting the process of                   election<\/p>\n
               taking        care of such aberrations as can be taken<\/p>\n
               care     of     only at that moment failing which                      the<\/p>\n
               flowing        stream      of election process may                either<\/p>\n
               stop     or     break its bounds and spill over.                       The<\/p>\n
              relief sought for is to let the election process<\/p>\n
              proceed         in    conformity with law and               facts       and<\/p>\n
              circumstances          be such that the wrong done shall<\/p>\n
              not      be undone after the result of the                      election<\/p>\n
              has       been       announced,        subject       to     overriding<\/p>\n
              consideration          that      the     court’s          intervention<\/p>\n
              shall      not       interrupt     delay        or     postpone         the<\/p>\n
              ongoing election proceedings.”\n<\/p>\n
    .         The      court       has    summed up      its       conclusions          in<\/p>\n
    paragraph       32 of the judgment and it is evident from the<\/p>\n
    conclusions        that interference by the court should be an<\/p>\n
    exception,      rule being invoking of judicial remedy to be<\/p>\n
    postponed       till after the completion of the                    proceedings<\/p>\n
    in     election.      The       term “election” is required                  to     be<\/p>\n
    widely interpreted so as to include all steps and entire<\/p>\n
    proceedings        from    the date of notification of                    election<\/p>\n
    till     declaration of result.             However, we may             reproduce<\/p>\n
    conclusions 2 to 4 verbatim.\n<\/p>\n
              “(2).      Any       decision     sought and rendered                  will<\/p>\n
              not     amount to “calling in question an election”\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                           (61)<\/span><\/p>\n
      if     it subserves the process of the election and<\/p>\n
      facilitates           the    completion       of    the      election.\n<\/p>\n
      Anything          done       towards      completing            or       in<\/p>\n
      furtherance           of the election proceedings                 cannot<\/p>\n
      be described as questioning the election.\n<\/p>\n
      (3).         Subject        to   above, the action taken                 or<\/p>\n
      orders issued by Election Commission are open to<\/p>\n
      judicial        review on the well settled                 parameters<\/p>\n
      which        enable      judicial     review of         decision         of<\/p>\n
      statutory         bodies,        such as, on a case            of     mala<\/p>\n
      fide     or arbitrary exercise of powers being made<\/p>\n
      out     or<\/p>\n
                     the statutory body being shown to                      have<\/p>\n
      acted in breach of law.\n<\/p>\n
      (4).         Without        interrupting,          obstructing         and<\/p>\n
      delaying          the       progress          of    the        election<\/p>\n
      proceedings, judicial intervention is available<\/p>\n
      if    assistance of the court has been sought                          for<\/p>\n
      merely       to     correct or smoothen the progress                     of<\/p>\n
      election       proceedings,         to remove the            obstacles<\/p>\n
      therein,       or     to    preserve      a     vital      piece         of<\/p>\n
      evidence       if the same would be lost or destroyed<\/p>\n
      or    rendered        irretrievable        by       the      time      the<\/p>\n
      results       are     declared      and       stage is         set     for<\/p>\n
      invoking the jurisdiction of the court.”\n<\/p>\n
                                             ”\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                      (62)<\/span><\/p>\n
    .          In        the matter at hands, as can be seen from the<\/p>\n
    discussion of facts and law hereinabove, the petitioners<\/p>\n
    are     aggrieved          by non implementation of                    provisions           of<\/p>\n
    PESA,     which        give distinct advantage to                      the       Scheduled<\/p>\n
    Tribes,        when       Panchayat is one consisting of                         Scheduled<\/p>\n
    Area.          We         have       already       observed          earlier            that,<\/p>\n
    implementation             of        Section 4(g) of PESA              would          require<\/p>\n
    reservation of not less than one-half of total number of<\/p>\n
    seats     in        the Panchayat and also of all the offices                               of<\/p>\n
    Chairpersons           of the Panchayats for Scheduled Tribe.                               If<\/p>\n
    the      election              goes       ahead      without         ensuring            such<\/p>\n
    reservation,              entire          election        proceedings            will       be<\/p>\n
    illegal,        viewed
\n                                ig  in     the light of provisions                   of     PESA,<\/p>\n
    which      is         a     special          legislation          enacted         by      the<\/p>\n
    Parliament,           extending           provisions        of Part         IX     of     the<\/p>\n
    Constitution           with modifications, to the Scheduled Area.\n<\/p>\n
    The     seats,        which          ought to be reserved              for       Scheduled<\/p>\n
    Tribes,        if     not reserved and election                    proceedings            are<\/p>\n
    allowed         to        be     concluded,           the     situation           may       be<\/p>\n
    irreversible,             except by fresh election.                    The submission<\/p>\n
    of    learned         Counsel for the State Election                         Commission,<\/p>\n
    confirms        that       the        actual election programme                   has     not<\/p>\n
    rolled     in        motion,          which is likely to be                declared         on<\/p>\n
    10.11.2008.               It         is    also      clear      that       polling          is<\/p>\n
    tentatively           scheduled           for 30.11.2008 and the                  term      of<\/p>\n
    existing        Zilla       Parishads          and Panchayat             Samitis         ends<\/p>\n
    sometime        in     the       last       week     of     December         2008.        We,<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                    (63)<\/span><\/p>\n
    therefore,        feel that there is time margin available for<\/p>\n
    rectifying        the     legal lacuna.           There are at          least        ten<\/p>\n
    more     days     from the date of delivery of this                       judgment,<\/p>\n
    during     which        the State Election Commission can act                         to<\/p>\n
    remove     the     defect          and there also          appears      some       time<\/p>\n
    margin     (between        30.11.2008 to 27.12.2008) to                     postpone<\/p>\n
    the     election programme, by few days and yet complete it<\/p>\n
    before     expiry        of     tenure of present            Panchayats.             We,<\/p>\n
    therefore,        feel     justified         in     entertaining          the      writ<\/p>\n
    petition        (which     was       filed    on     21.7.2008) and              issue<\/p>\n
    directions,         in        view    of      conclusion          4     reproduced<\/p>\n
    hereinabove,        from       the     case       relied     upon     by      learned<\/p>\n
    Counsel for intervenors-Respondents.\n<\/p>\n
    .          We     have     gone through the judgment rendered                         by<\/p>\n
    earlier        Division Benches in Writ Petition Nos.                        5386 of<\/p>\n
    2006     and     group        of     Writ     Petitions,         including           Writ<\/p>\n
    Petition        No.6389 of 2006.            We do not think that we                  are<\/p>\n
    recording anything in conflict with those judgments.                                  In<\/p>\n
    fact,     in     both     those       judgments,       election         for      Zilla<\/p>\n
    Parishad, Aurangabad, was the subject-matter.                             The court<\/p>\n
    thus,     was     not required to consider the                   provisions           of<\/p>\n
    PESA     and     rotation          policy,    which        was   sought         to     be<\/p>\n
    implemented by the directions of the court, is upheld by<\/p>\n
    us, as available to be implemented by the State Election<\/p>\n
    Commission, in view of silence of PESA on that aspect.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                              (64)<\/span><\/p>\n
    14.    Our     conclusions based on the reasons                        discussed<\/p>\n
    hereinabove, can be summarised as follows;\n<\/p>\n
           (1).       Second        proviso       to       each       of     Sections<\/p>\n
           12(2)(b)        and     58 (1-B) (b) of ZPPS Act                   are      in<\/p>\n
           conflict        with first proviso to Section 4(g)                          of<\/p>\n
           PESA.\n<\/p><\/blockquote>\n
           (2).       Second        proviso       to       each       of     Sections<\/p>\n
           42(4)(a)        and     67(5)(a)       of       ZPPS       Act     are      in<\/p>\n
           conflict with the second proviso to Section 4(g)<\/p>\n
           of PESA.\n<\/p><\/blockquote>\n
           (3).       Proviso           to Rule 4 (2) of 1996 Rules                    is<\/p>\n
           also     in conflict with first proviso to                         Section<\/p>\n
           4(g) of PESA.\n<\/p><\/blockquote>\n
           (4).       It     is desirable for Law Departments                          of<\/p>\n
           State and Union to have a dialogue to remove the<\/p>\n
           discrepancy.\n<\/p><\/blockquote>\n
           (5).       Till        the     time discrepancy is                removed,<\/p>\n
           provisions        of     ZPPS     Act \/ 1996           Rules       to     the<\/p>\n
           extent     of     repugnancy with PESA,                  as     indicated<\/p>\n
           hereinabove,           will     have    to        be     ignored          for<\/p>\n
           practical application.\n<\/p><\/blockquote>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                                   (65)<\/span><\/p>\n
               (6).         It    is     not possible to treat           Scheduled<\/p>\n
               Area        and other part from the same Panchayat, as<\/p>\n
               separate zones, controlled by PESA and ZPPS Act,<\/p>\n
               for the purpose of elections to Panchayats.\n<\/p><\/blockquote>\n
               (7).         State      Election   Commission cannot               deny<\/p>\n
               responsibility            of implementation of PESA in the<\/p>\n
               field.\n<\/p><\/blockquote>\n
    .          In     view       of conclusions hereinabove,             the      writ<\/p>\n
    petition        will<\/p>\n
                             have to be and is       accordingly           allowed.\n<\/p>\n
    .          Rule,       which       was made returnable        forthwith          by<\/p>\n
    consent     of     the       parties    at the   commencement           of     the<\/p>\n
    arguments,        is     made absolute, by       directing         Respondent<\/p>\n
    nos.1     and 2 to implement the provisions of PESA for the<\/p>\n
    elections        of Panchayats at all levels in the                  districts<\/p>\n
    of Dhule and Nandurbar.\n<\/p>\n
    (N.D.DESHPANDE, J.)                                (N.V.DABHOLKAR,J.)<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>
\n                    (66)<\/span><\/p>\n
    pnd\/uniplex\/
\n    wp4860.08<\/p>\n
                          ::: Downloaded on – 09\/06\/2013 14:02:15 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vikramsing vs The State Of Maharashtra on 31 October, 2008 Bench: N.V. Dabholkar, N.D. Deshpande (1) 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-44624","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2008-10-30T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-10-22T20:23:40+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"64 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Vikramsing vs The State Of Maharashtra on 31 October, 2008\",\"datePublished\":\"2008-10-30T18:30:00+00:00\",\"dateModified\":\"2016-10-22T20:23:40+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\"},\"wordCount\":11609,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\",\"name\":\"Vikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2008-10-30T18:30:00+00:00\",\"dateModified\":\"2016-10-22T20:23:40+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Vikramsing vs The State Of Maharashtra on 31 October, 2008\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Vikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","og_locale":"en_US","og_type":"article","og_title":"Vikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2008-10-30T18:30:00+00:00","article_modified_time":"2016-10-22T20:23:40+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"64 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Vikramsing vs The State Of Maharashtra on 31 October, 2008","datePublished":"2008-10-30T18:30:00+00:00","dateModified":"2016-10-22T20:23:40+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008"},"wordCount":11609,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Bombay High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","url":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008","name":"Vikramsing vs The State Of Maharashtra on 31 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2008-10-30T18:30:00+00:00","dateModified":"2016-10-22T20:23:40+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/vikramsing-vs-the-state-of-maharashtra-on-31-october-2008#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Vikramsing vs The State Of Maharashtra on 31 October, 2008"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/44624","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=44624"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/44624\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=44624"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=44624"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=44624"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}