A.M.KHANWILKAR,J. - (1.) These writ petitions under Article 32 of the Constitution of India seek a declaration that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961[1] is ultra vires the provisions of Articles 243-D and 243-T including Articles 14 and 16 of the Constitution of India. In addition, the validity of the notifications dated 27.7.2018 and 14.2.2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara have been questioned and it is prayed that the same be quashed and set aside. A district wise chart has been presented to illustrate the excess reserved percentage and seats (more than aggregate 50 per cent of total seats), in some of the districts, which reads thus: JUDGEMENT_16_LAWS(SC)3_2021_1.jpg JUDGEMENT_16_LAWS(SC)3_2021_2.jpg [1] for short, "the 1961 Act"
(2.) The conundrum in these matters revolves around the exposition of the Constitution Bench of this Court in K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr., (2010) 7 SCC 202. Relying on the dictum in the said decision, the petitioners would urge that it is no more open to the respondents to reserve more than 50 per cent (aggregate) seats in the concerned local bodies by providing reservation for Scheduled Castes[3] /Scheduled Tribes[4] /Other Backward Classes[5]. Whereas, the respondent-State would urge that the stated decision recognises that it is permissible to reserve seats for OBCs to the extent permissible in the 1961 Act. Further, in exceptional situation, the reservation for SCs/STs/OBCs in the concerned local bodies (Zilla Parishads and Panchayat Samitis) could exceed even 50 per cent of the total seats. This is the central issue to be dealt with in the present writ petitions. [3] for short, "the SCs" [4] for short, "the STs" [5] for short, "the OBCs"
(3.) The provision in the form of Section 12 of the 1961 Act enables the respondents to reserve 27 per cent of seats in the concerned Zilla Parishads and Panchayat Samitis. Section 12 of the 1961 Act is reproduced hereunder: "12. Division of District into electoral division.(1) The State Election Commission shall, for the purposes of election of Councillors divide every District; into electoral divisions (the territorial extent of any such division not being outside the limits of the same Block), each returning one Councillor, and there shall be a separate election for each electoral division: Provided that, such electoral division shall be divided in such a manner that the ratio between the population of each electoral division and the total number of Councillors to be elected for the Zilla Parishad shall, so far as practicable, be the same throughout the Zilla Parishad area: Provided further that, while distributing such electoral divisions among the Panchayat Samitis, not less than two electoral divisions shall be allotted to each Panchayat Samiti. (2) (a) In the seats to be filled in by election in a Zilla Parishad there shall be seats reserved for persons belonging to the Scheduled Castes, Scheduled Tribes, Backward Class of citizens and women, as may be determined by the State Election Commission in the prescribed manner: (b) the seats to be reserved for the persons belonging to the Scheduled Castes and the Scheduled Tribes in a Zilla Parishad shall bear, as nearly as may be, the same proportion to the total number of seats to be filled in by direct election in that Zilla Parishad as the population of the Scheduled Castes or, as the case may be, the Scheduled Tribes in that Zilla Parsishad area bears to the total population of that area and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad: Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the Scheduled Tribes shall not be less than one-half of the total number of seats in the Zilla Parishad: Provided further that, the reservation for the Scheduled Tribes in a Zilla Parishad falling only partially in the Scheduled Areas shall be in accordance with the provisions of clause (b): Provided also that one-half of the total number of seats so reserved shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes: (c) the seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 per cent. of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad : Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 per cent. of the seats remaining (if any), after reservation of the seats for the Scheduled Tribes and the Scheduled Castes :Provided further that, the reservation for the persons belonging to the Backward Class of Citizens in a Zilla Parishad falling only partially in the Scheduled Areas shall be in accordance with the provisions of clause (c) : Provided also that one-half of the total number of seats so reserved shall be reserved for women belonging to the category of Backward Class of Citizens: (d) one-half (including the number of seats reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the category of Backward Class of Citizens) of the total number of seats to be filled in by direct election in a Zilla Parishad shall be reserved for women and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad. (3) The reservation of seats (other than the reservation for women) under sub-section (2) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution of India." (emphasis supplied);