SECTION IX

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No. 33904-33910 OF 2017

WITH

INTERLOCUTORY APPLICATION NO. 104572 and 112505 OF 2019

(Application for Intervention)

Process Id: 238/2020

OFFICE REPORT

This Hon'ble Court, on 18th December, 2019, was pleased to pass the following order:

" SLP(C) Nos. 33904-33910/2017, W.P.(C) Nos. 980/2019, 981/2019 and 1408/2019

I.A. No. 188324/2019 in SLP(C) Nos. 33904- 33910/2017 seeking impleadment of the Registrar General of India, Ministry of Home Affairs is allowed.

We have heard counsel for the parties at length.

The issue brought before this Court by way of independent writ petitions is to question the reservations propounded by the State Election Commission for the ensuing elections on the basis of earlier dispensation. That has been done by the State Election Commission in terms of orders passed by this Court from time to time (dated 10.7.2019, 19.7.2019, 28.8.2019 and 7.11.2019, in particular) in the leading petition being Special Leave Petition (C) Nos.33904-33910 of 2017.

In the course of hearing of the said petitions, it was noticed that at least in respect of five districts, Nagpur, Washim, Akola, Dhule and Nandurbar, election was not held to install the Zilla Parishads and Panchayat Samitis although the term of the out-going committee had expired long back and in some cases, even more than two years. Resultantly, this Court called upon the State to appoint Administrator(s) for the concerned committees and also the State Election Commission  to initiate the election process to install new committees before expiry of the upper limit for continuing Administrator(s).

The State Government, in the meantime, came out with Ordinance dated 31.07.2019 being Maharashtra Ordinance No.XV of 2019 amending Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, whereby a proviso has been inserted in the said Section, which reads thus: -

“provided further that, after providing reservation as per the provisions of this clause, if the reservation exceeds 50 per cent. Then, the seats to be reserved for the persons belonging to the Backward Class of Citizens in a Zilla Parishad shall bear, as nearly as may be, in the same proportion to be total number of seats to be filled in by direct election in that Zilla Parishad as the population of the Backward Class of Citizen in that Zilla Parishad area bears to the total population of that area.”

In due course, it was, however, realized that it may not be possible to enforce the amended provision considering the fact that the last census was published in the year 2011 which does not mention the break-up of Backward Class of Citizens but only provides for the break-up of Scheduled Castes and Scheduled Tribes category. As a result,  despite the stated proviso, the reservation for the category of Backward Class of Citizens cannot be translated into reserved seats for the ensuing election of the concerned districts. Resultantly, this Court, on 28.08.2019, directed the State Election Commission to proceed on the basis of old dispensation in terms of the earlier order of this Court. That direction became inevitable as the State Government expressed its inability to provide category-wise break-up of population, in particular, regarding Backward Class category. According to the State, that information could be provided only by the Central Government, which was not forthcoming. Indisputably, the last census, which alone can be reckoned for determining the extent of reservation, is of 2011 and it does not contain the population information of Backward Class category. Moreover, it is now fairly conceded by the State that reservation will have to be provided by the State Election Commission, which can be done as and when a new census is published containing the break-up of Backward Class category for the future elections. Concededly, there is no time frame for publication of new census and the  Central Government cannot hasten that process.

Be that as it may, as per the direction issued by this Court, the State Election Commission has already notified the Election Programme for the concerned five districts, namely, Nagpur, Washim, Akola, Dhule and Nandurbar. The Election Programme has commenced from today i.e. 18th December, 2019.

After hearing counsel for the parties, we are of the considered opinion that the issues raised may require deeper examination.

Indeed, the Writ petitioners have invited our attention to the dictum of the Constitution Bench of this Court in ‘K. Krishna Murthy (Dr.) and Others vs. Union of India and Another’, reported in (2010) 7 SCC 202, particularly paragraph 82(iv) thereof. However, counsel for the State contends that on reading paragraphs 59 and 64 of the same decision, there is some doubt as to whether 50% vertical reservations referred to in paragraph 82(iv) can be regarded as inviolable. In support of his argument, he has placed reliance on the break- up of the figures provided in the Election Programme in respect of five districts as under: 

Zilla           Total  General  SC  ST   OBC/BCC    Excess

Parishad

Nagpur           58     25     10     7       16            3 / 7%

Washim          52     23     11     4          14          3 / 6%

Akola              53     22     12     5         14          4 / 8%

Dhule              56     15      3     23         15         13 / 23%

Nandurbar    56      0        1     44         11          0 / 100%

According to Shri Shekhar Naphade, learned senior counsel appearing for the State, if the direction given in paragraph 82(iv) of the reported decision is to be strictly complied, it may not be possible to give effect thereto at least in respect of two districts which have high tribal population such as Dhule and Nandurbar. Inasmuch as, in the case of Nandurbar, 44 out of 56 seats are allotted or reserved for the Scheduled Tribes category commensurate with the population ratio. That itself would consume 50% upper limit provided by the Constitution Bench leaving no reservation even for the Scheduled Castes category.

Similar position obtains in respect of Dhule District, where around 50% seats are earmarked for the Scheduled Tribes category.

Shri D.N. Goburdhan, learned counsel for the writ petitioner(s), has invited our attention to  the decision of Three Judge Bench passed in the case of Dravida Munnetra Kashagam (DMK) vs. Secretary Governors Secretariat and Others, dated 06.12.2019.

However, prima facie, we find force in the submission of the learned senior counsel for the State that the said decision is on the facts of that case. That can be discerned from paragraph 13 of the decision. In that case, 31 revenue districts were bifurcated into 39 districts and the election programme was notified without undertaking fresh delimitation and reservation was for the categories of Scheduled Castes and Scheduled Tribes only.

As aforesaid, these are matters which may require further consideration. For the time being, we deem it appropriate to issue notice to respondents in writ petitions.

However, we decline to stay the election process as of now, but make it clear that election programme may proceed as already notified by the State Election Commission and the election to the seats concerning Backward Class category in the concerned districts shall be subject to the outcome of these petitions. Ordered accordingly. 

The respondents to file reply affidavit(s) within four weeks. Thereafter, two weeks’ time is granted to file rejoinder affidavit(s).

List the matters on 12th February, 2020 (Non- miscellaneous day).

I.A. Nos. 104572/2019 and 112505/2019 in SLP(C) Nos. 33904-33910/2017 for intervention be also listed along with these matters on the next date fixed.

W.P.(C) No. 1445/2019

Heard Shri Pallav Shisodia, learned senior counsel appearing for the petitioner and Shri Ajit Kadethankar, learned counsel for the State Election Commission.

The view taken by the State Election Commission as noted in order dated 14.12.2019 on the construction of Rule 6 of the Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996, in our opinion, seems to be just and proper. Hence, we decline to entertain this writ petition filed under Article 32 of the Constitution. 

The writ petition and pending application(s) are accordingly dismissed. "

SLP(C) Nos. 33904-33910 of 2017

It is submitted that pursuant to aforesaid order, Registrar General of India, Ministry of Home Affairs has been impleaded as Party Respondent.

It is further submitted that Counsel for the Respondents has not filed any reply affidavit so far. Hence, no Rejoinder affidavit has been filed.

Service of notice is not complete on Respondent No. 2 in SLP(C) No. 33909-10 of 2017.

The Petition above-mentioned is listed before the Hon'ble Court  with this Office Report.

Dated : February 11, 2020