VIKAS KISHANRAO GAWALI versus STATE OF MAHARASHTRA & ORS. on 4 March 2021

[2021] 2 S.C.R. 173

VIKAS KISHANRAO GAWALI

v.

STATE OF MAHARASHTRA & ORS.

(Writ Petition (Civil) No. 980 of 2019)

MARCH 04, 2021

[A.M. KHANWILKAR, INDU MALHOTRA ANDAJAY RASTOGI, JJ.]

Maharashtra Zilla Parishads and Panchayat Samitis Act,1961 – s.12(2)(c) – Constitution of India – Arts. 14, 16, 243-D and243-T – Reservation in local self-government – Petitioners soughta declaration that s.12(2)(c) of the Maharashtra Zilla Parishadsand Panchayat Samitis Act, 1961, is ultra vires the provisions ofArts. 243-D and 243-T including Arts. 14 and 16 of the Constitution– In addition, the validity of notifications dated 27.07.2018 and14.02.2020 issued by the State Election Commission providing forreservation exceeding 50 per cent in respect of Zilla Parishads andPanchayat Samitis have been questioned – The provision in theform of s.12 of the 1961 Act enables the respondents to reserve 27per cent of seats for persons belonging to the Backward class citizensin the concerned Zilla Parishads and Panchayat Samitis – Therespondent-State urged that the that it is permissible to reserve seatsfor OBCs to the extent permissible in the 1961 Act – Held: Thedecision of the Constitution Bench in K. Krishna Murthy requiredthe triple test/conditions required to be complied by the State beforereserving seats in local bodies for OBCs i.e. (1) to set up a dedicatedCommission to conduct contemporaneous rigorous empirical inquiryinto the nature and implications of the backwardness qua localbodies, within the State; (2) to specify the proportion of reservationrequired to be provisioned local body wise in light ofrecommendations of the Commission, so as not to fall foul ofoverbreadth; and (3) in any case such reservation shall not exceedaggregate of 50 per cent of the total seats reserved in favour ofSCs/STs/OBCs taken together – The said triple test conditions werenot complied by the State – As regards s.12(2)(c) of the 1961 Actinserted in 1994, the plain language does give an impression that

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Auniform and rigid quantum of 27 per cent of the total seats acrossthe State need to be set apart by way of reservation in favour ofOBCs – In light of the dictum of the Constitution Bench, such arigid provision cannot be sustained much less having uniformapplication to all the local bodies within the State – The provisionin the form of s.12(2)(c) can be saved by reading it down – TheBexpression “shall be” preceding 27 per cent occurring in s.12(2)(c),be construed as “may be” including to mean that reservation forOBCs may be up to 27 per cent but subject to the outer limit of 50per cent aggregate in favour of SCs/STs/OBCs taken together, asenunciated by the Constitution Bench of this Court – In the instantCcase, no inquiry much less contemporaneous rigorous empiricalinquiry into the nature and implications of backwardness by adedicate Commission established by the State for the purpose wasundertaken, it is not open to the State to fall back on s.12(2)(c) asenacted in 1994 – That provision is an enabling provision and would become functional and operational only upon fulfilling tripleDtest as specified by the Constitution Bench – Thus, the impugnednotifications issued by the State Election Commission reserving seatsfor OBCs in the concerned local bodies, suffer from the vice offoundational jurisdictional error – The impugned notifications tothe extent it provides for reservation for OBCs in the concernedElocal bodies, is, therefore, void and without authority of law.

Disposing of the writ petitions, the Court

Conclusion

Disposing of the writ petitions, the Court HELD: 1. On a fair reading of the exposition in the K.Krishna Murthy, what follows is that the reservation for OBCs isonly a “statutory” dispensation to be provided by the StateFlegislations unlike the “constitutional” reservation regardingSCs/STs which is linked to the proportion of population. Asregards the State legislations providing for reservation of seatsin respect of OBCs, it must ensure that in no case the aggregatevertical reservation in respect of SCs/STs/OBCs taken togetherGshould exceed 50 per cent of the seats in the concerned localbodies. In case, constitutional reservation provided for SCs andSTs were to consume the entire 50 per cent of seats in theconcerned local bodies and in some cases in scheduled area evenbeyond 50 per cent, in respect of such local bodies, the question H

of providing further reservation to OBCs would not arise at all.To put it differently, the quantum of reservation for OBCs oughtto be local body specific and be so provisioned to ensure that itdoes not exceed the quantitative limitation of 50 per cent(aggregate) of vertical reservation of seats for SCs/STs/OBCstaken together. [Para 7][187-A-D]

2. Besides this inviolable quantitative limitation, the StateAuthorities are obliged to fulfil other pre-conditions beforereserving seats for OBCs in the local bodies. The foremostrequirement is to collate adequate materials or documents thatcould help in identification of backward classes for the purposeof reservation by conducting a contemporaneous rigorousempirical inquiry into the nature and implications of backwardnessin the concerned local bodies through an independent dedicatedCommission established for that purpose. Thus, the Statelegislations cannot simply provide uniform and rigid quantum ofreservation of seats for OBCs in the local bodies across the Statethat too without a proper enquiry into the nature and implicationsof backwardness by an independent Commission about theimperativeness of such reservation. Further, it cannot be a staticarrangement. It must be reviewed from time to time so as not toviolate the principle of overbreadth of such reservation (which initself is a relative concept and is dynamic). Besides, it must beconfined only to the extent it is proportionate and within thequantitative limitation as is predicated by the Constitution Benchof this Court. [Para 8][187-D-G]

3. As a matter of fact, no material is forthcoming as to onwhat basis the quantum of reservation for OBCs was fixed at 27per cent, when it was inserted by way of amendment in 1994.Indeed, when the amendment was effected in 1994, there was noguideline in existence regarding the modality of fixing the limitsof reserved seats for OBCs as noted in the decision of theConstitution Bench in K. Krishna Murthy. After that decision,however, it was imperative for the State to set up a dedicatedCommission to conduct contemporaneous rigorous empiricalinquiry into the nature and implications of backwardness and onthe basis of recommendations of that Commission take follow up AB

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Asteps including to amend the existing statutory dispensation, suchas to amend Section 12(2)(c) of the 1961 Act. There is nothing onrecord that such a dedicated Commission had been set up untilnow. [Para 11][188-D-G]

4. Be that as it may, it is indisputable that the triple test/Bconditions required to be complied by the State before reservingseats in the local bodies for OBCs has not been done so far. Towit, (1) to set up a dedicated Commission to conductcontemporaneous rigorous empirical inquiry into the nature andimplications of the backwardness qua local bodies, within theState; (2) to specify the proportion of reservation required to beCprovisioned local body wise in light of recommendations of theCommission, so as not to fall foul of overbreadth; and (3) in anycase such reservation shall not exceed aggregate of 50 per centof the total seats reserved in favour of SCs/STs/OBCs takentogether. In a given local body, the space for providing suchDreservation in favour of OBCs may be available at the time ofissuing election programme (notifications). However, that couldbe notified only upon fulfilling the aforementioned pre-conditions.Admittedly, the first step of establishing dedicated Commissionto undertake rigorous empirical inquiry itself remains a mirage.To put it differently, it will not be open to respondents to justifyEthe reservation for OBCs without fulfilling the triple test, referredto above. [Para 12][189-B-E]

5. As regards Section 12(2)(c) of the 1961 Act inserted in1994, the plain language does give an impression that uniformand rigid quantum of 27 per cent of the total seats across theFState need to be set apart by way of reservation in favour of OBCs.In light of the dictum of the Constitution Bench, such a rigidprovision cannot be sustained much less having uniformapplication to all the local bodies within the State. Instead,contemporaneous empirical inquiry must be undertaken to identifyGthe quantum qua local body or local body specific. [Para 13][189-E-F]

6. In opinion of this Court, the provision in the form ofSection 12(2)(c) can be saved by reading it down, to mean thatreservation in favour of OBCs in the concerned local bodies may H

be notified to the extent, that it does not exceed 50 per cent ofthe total seats reserved in favour of SCs/STs/OBCs takentogether. In other words, the expression “shall be” preceding27 per cent occurring in Section 12(2)(c), be construed as “maybe” including to mean that reservation for OBCs may be up to27 per cent but subject to the outer limit of 50 per cent aggregatein favour of SCs/STs/OBCs taken together, as enunciated by theConstitution Bench of this Court. On such interpretation, Section12(2)(c) can be saved and at the same time, the law declared bythe Constitution Bench of this Court can be effectuated in itsletter and spirit. [Para 14][189-G-H; 190-A-B]

7. In light of the finding recorded hitherto (that no inquirymuch less contemporaneous rigorous empirical inquiry into thenature and implications of backwardness by a dedicateCommission established by the State for the purpose has beenundertaken), it is not open to the State to fall back on Section12(2)(c) as enacted in 1994. That provision, as aforementioned,is an enabling provision and would become functional andoperational only upon fulfilling triple test as specified by theConstitution Bench of this Court. That is the sine qua non or thequintessence for exercise of power to reserve seats for OBCs inthe local bodies. Indeed, the exercise of power to reserve seatsfor OBCs springs from Section 12(2)(c) of the 1961 Act, but thatis hedged by conditions and limitations specified by theConstitution Bench of this Court and would not get ignited untilsuch time. [Para 17][190-G-H; 191-A-B]

8. Thus understood, the impugned notifications issued bythe State Election Commission reserving seats for OBCs in theconcerned local bodies, suffer from the vice of foundationaljurisdictional error. The impugned notification(s) to the extent itprovides for reservation for OBCs in the concerned local bodies,is, therefore, void and without authority of law. [Para 18][191-B-C]

9. A priori, the elections conducted by the State ElectionCommission on the basis of such notifications concerningreserved OBC seats alone are vitiated and must be regarded asnon est in the eyes of law from its inception in the wake of AB

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Adeclaration of law in that regard by the Constitution Bench ofthis Court. [Para 19][191-C-D]

10. In conclusion, this Court hold that Section 12(2)(c) ofthe 1961 Act is an enabling provision and needs to be read downto mean that it may be invoked only upon complying with theBtriple conditions as specified by the Constitution Bench of thisCourt, before notifying the seats as reserved for OBC categoryin the concerned local bodies. Further, this Court quash and setaside the impugned notifications to the extent they provide forreservation of seats for OBCs being void and non est in lawincluding the follow up actions taken on that basis. In other words,Celection results of OBC candidates which had been made subjectto the outcome of these writ petitions including so notified in theconcerned election programme issued by the State ElectionCommission, are declared as non est in law and the vacancy ofseat(s) caused on account of this declaration be forthwith filledDup by the State Election Commission with general/opencandidate(s) for the remainder term of the concerned local bodies,by issuing notification in that regard. [Para 25][198-E-G;199-A-B]

K. Krishna Murthy (Dr.) & Ors. v. Union of India &EAnr. (2010) 7 SCC 202 : [2010] 6 SCR 972 – followed.

Case Law Reference

[2010] 6 SCR 972followedpara 2

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 980 Of 2019FUNDER ARTICLE 32 OF THE CONSTITUTION OF INDIAWith Writ Petition (Civil) Nos. 981 of 2019, 1408 of 2019, 743 of 2020.Vikas Singh, Sr. Adv., Sandeep Sudhakar Deshmukh, Amol B.Karande, Kapish Seth, Mukesh Samarth, D.N. Goburdhun, Mrs. SujataGKumar Muni, Somanatha Padhan, Ravindra Keshavrao Adsure, RahulChitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ajit Kadathankar,Vijay Kumar, Ms. Bharti Tyagi, Ms. Qurratulain, Ms. Damini Hajela,Brij Kishor Sah, Nicholas Chaudhary, Aditya Jadhav, Himanshu Bhushan,Sudhanshu S. Choudhari, and Mahesh P. Shinde, Advs. for the appearingHparties.

VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA& ORS.

The Judgment of the Court was delivered by A

A.M. KHANWILKAR, J.

1. These writ petitions under Article 32 of the Constitution ofIndia seek a declaration that Section 12(2)(c) of the Maharashtra ZillaParishads and Panchayat Samitis Act, 1961[1], is ultra vires the provisionsof Articles 243-D and 243-T including Articles 14 and 16 of theConstitution of India. In addition, the validity of the notifications dated27.7.2018 and 14.2.2020 issued by the State Election Commission,Maharashtra providing for reservation exceeding 50 per cent in respectof Zilla Parishads and Panchayat Samitis of districts Washim, Akola,Nagpur and Bhandara have been questioned and it is prayed that thesame be quashed and set aside. A district wise chart has been presentedto illustrate the excess reserved percentage and seats (more thanaggregate 50 per cent of total seats), in some of the districts, whichreads thus:

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“District: Washim

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ParticularsTotalGeneralReservedExceed 50 per centSeats SCSTOBCPercentageSeatsZilla Parishad52231104145.76 %3Gram Panchayat490219100391325.30 %26District: BhandaraParticularsTotalGeneralReservedExceed 50 per centESeatsSCSTOBCPercentageSeatsZilla Parishad52250904141.92 %1Gram Panchayat54126191431461.75 %9District: AkolaParticularsTotalGeneralReservedExceed 50 per centSeats SCSTOBCPercentageSeatsFZilla Parishad53221205148.49 %4Panchayat Samiti106442509288.49 %9Gram Panchayat539226125421468.07 %43District: NagpurParticularsTotalGeneralReservedExceed 50 per centZilla Parishad Seats 58 25 SC10 S07 T OB16CPerce6.89 ntage%Seats4GPanchayat Samiti 116 51 19 15 31 6.03 % 7 Gram Panchayat772 330137972087.25%56

1 for short, “the 1961 Act”

ADistrict: Gondiya

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2. The conundrum in these matters revolves around the expositionof the Constitution Bench of this Court in K. Krishna Murthy (Dr.) &Ors. v. Union of India & Anr.[2]. Relying on the dictum in the said decision,the petitioners would urge that it is no more open to the respondents toreserve more than 50 per cent (aggregate) seats in the concerned localCbodies by providing reservation for Scheduled Castes[3]/Scheduled Tribes[4]/Other Backward Classes[5]. Whereas, the respondent-State would urgethat the stated decision recognises that it is permissible to reserve seatsfor OBCs to the extent permissible in the 1961 Act. Further, in exceptionalsituation, the reservation for SCs/STs/OBCs in the concerned local bodies (Zilla Parishads and Panchayat Samitis) could exceed even 50 perDcent of the total seats. This is the central issue to be dealt with in thepresent writ petitions.

3. The provision in the form of Section 12 of the 1961 Act enablesthe respondents to reserve 27 per cent of seats in the concerned ZillaParishads and Panchayat Samitis. Section 12 of the 1961 Act isEreproduced hereunder:

“12. Division of District into electoral division.—(1) The StateElection Commission shall, for the purposes of election ofCouncillors divide every District; into electoral divisions (theterritorial extent of any such division not being outside the limitsFof the same Block), each returning one Councillor, and there shallbe a separate election for each electoral division:

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

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3 for short, “the SCs”

4 for short, “the STs”

5 for short, “the OBCs”

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

(2) (a) In the seats to be filled in by election in a Zilla Parishadthere shall be seats reserved for persons belonging to the ScheduledCastes, Scheduled Tribes, Backward Class of citizens and women,as may be determined by the State Election Commission in theprescribed manner:

(b) the seats to be reserved for the persons belonging to theScheduled Castes and the Scheduled Tribes in a Zilla Parishadshall bear, as nearly as may be, the same proportion to the totalnumber of seats to be filled in by direct election in that ZillaParishad as the population of the Scheduled Castes or, as thecase may be, the Scheduled Tribes in that Zilla Parsishad areabears to the total population of that area and such seats shall beallotted by rotation to different electoral divisions in a ZillaParishad:

Provided that, in a Zilla Parishad comprising entirely theScheduled Areas, the seats to be reserved for the Scheduled Tribesshall not be less than one-half of the total number of seats in theZilla Parishad:

Provided further that, the reservation for the Scheduled Tribes ina Zilla Parishad falling only partially in the Scheduled Areas shallbe in accordance with the provisions of clause (b):

Provided also that one-half of the total number of seats so reservedshall be reserved for women belonging to the Scheduled Castesor, as the case may be, the Scheduled Tribes:

(c) the seats to be reserved for persons belonging to thecategory of Backward Class of Citizens shall be 27 per cent.of the total number of seats to be filled in by election in aZilla Parishad and such seats shall be allotted by rotationto different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely theScheduled Areas, the seats to be reserved for the personsbelonging to the Backward Class of Citizens shall be 27per cent. of the seats remaining (if any), after reservation AB

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182SUPREME COURT REPORTS

[2021] 2 S.C.R.

Aof the seats for the Scheduled Tribes and the ScheduledCastes :

Provided further that, the reservation for the personsbelonging to the Backward Class of Citizens in a ZillaParishad falling only partially in the Scheduled Areas shallBbe in accordance with the provisions of clause (c) :Provided also that one-half of the total number of seats soreserved shall be reserved for women belonging to thecategory of Backward Class of Citizens:

(d) one-half (including the number of seats reserved for womenCbelonging to the Scheduled Castes, Scheduled Tribes and thecategory of Backward Class of Citizens) of the total number ofseats to be filled in by direct election in a Zilla Parishad shall bereserved for women and such seats shall be allotted by rotation todifferent electoral divisions in a Zilla Parishad.

D(3) The reservation of seats (other than the reservation for women)under sub-section (2) shall cease to have effect on the expirationof the period specified in Article 334 of the Constitution of India.”

4. We may straight away advert to the decision in K. KrishnaEMurthy (supra). In paragraph 9 of the decision, this Court formulatedtwo questions for its consideration, the same read thus:

“9. In light of the submissions that have been paraphrased in thesubsequent paragraphs, the contentious issues in this case can beframed in the following manner:F

(i) Whether Article 243-D(6) and Article 243-T(6) areconstitutionally valid since they enable reservations infavour of backward classes for the purpose of occupyingseats and chairperson positions in panchayats andmunicipalities respectively?

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(ii) Whether Article 243-D(4) and Article 243-T(4) areconstitutionally valid since they enable the reservation ofchairperson positions in panchayats and municipalitiesrespectively?”

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5. As regards the discussion on the question of validity ofreservation in favour of backward classes, the Court proceeded toexamine the same in paragraphs 58 to 67 of the reported decision. Theessence of the view expressed by the Constitution Bench on the saidquestion is that Articles 243-D(6) and 243-T(6) of the Constitution ofIndia are merely enabling provisions and it would be improper to strikethem down as violative of the equality clause. At the same time, theCourt noted that these provisions did not provide guidance on how toidentify the backward classes and neither do they specify any principlefor the quantum of such reservations. Instead, discretion has beenconferred on the State legislatures to design and confer reservationbenefits in favour of backward classes. While dealing with the provisionspertaining to reservations in favour of backward classes concerning theStates of Karnataka and Uttar Pradesh wherein the quantum ofreservation was 33 per cent and 27 per cent respectively, the Courtnoted that objections can be raised even with regard to similar provisionsof some other State legislations. The real concern was about overbreadthin the State legislations and while dealing with that aspect in paragraphs60 to 63, the Court noted thus:

“60. There is no doubt in our minds that excessive anddisproportionate reservations provided by the State legislationscan indeed be the subject-matter of specific challenges beforethe courts. However, the same does not justify the striking downof Articles 243-D(6) and 243-T(6) which are constitutionalprovisions that enable reservations in favour of backward classesin the first place. As far as the challenge against the variousState legislations is concerned, we were not provided withadequate materials or argumentation that could help us tomake a decision about the same. The identification ofbackward classes for the purpose of reservations is anexecutive function and as per the mandate of Article 340,dedicated commissions need to be appointed to conduct arigorous empirical inquiry into the nature and implicationsof backwardness.

61. It is also incumbent upon the executive to ensure thatreservation policies are reviewed from time to time so asto guard against overbreadth. In respect of the objectionsagainst the Karnataka Panchayat Raj Act, 1993, all that we can AB

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SUPREME COURT REPORTS

Arefer to is the Chinnappa Reddy Commission Report (1990) whichreflects the position as it existed twenty years ago. In the absenceof updated empirical data, it is well-nigh impossible for thecourts to decide whether the reservations in favour of OBCgroups are proportionate or not.

B62. Similarly, in the case of the State of Uttar Pradesh, the claimsabout the extent of the OBC population are based on the 1991census. Reluctant as we are to leave these questions open, itgoes without saying that the petitioners are at liberty to raisespecific challenges against the State legislations if they can pointout flaws in the identification of backward classes with the helpCof updated empirical data.

63. As noted earlier, social and economic backwardness does notnecessarily coincide with political backwardness. In this respect,the State Governments are well advised to reconfigure theirreservation policies, wherein the beneficiaries underDArticles 243-D(6) and 243-T(6) need not necessarily becoterminous with the Socially and Educationally BackwardClasses (SEBCs) [for the purpose of Article 15(4)] or eventhe backward classes that are under represented ingovernment jobs [for the purpose of Article 16(4)]. It wouldEbe safe to say that not all of the groups which have been givenreservation benefits in the domain of education and employmentneed reservations in the sphere of local self-government. This isbecause the barriers to political participation are not of thesame character as barriers that limit access to educationand employment. This calls for some fresh thinking andFpolicy-making with regard to reservations in local self-government.”

6. Again, in paragraph 64, the Court noted about the absence ofGexplicit constitutional guidance as to the quantum of reservation in favourof backward classes in local self-government. For that, the thumb rule isthat of proportionate reservation. The Court hastened to add a word ofcaution, which in, essence, is the declaration of the legal position that theupper ceiling of 50 per cent (quantitative limitation) with respect to verticalreservations in favour of SCs/STs/OBCs taken together should not beH

breached. This has been made amply clear and restated even in paragraph67 of the reported decision, which reads thus:

“67. In the recent decision reported as Union of India v. RakeshKumar [(2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961 : (2010) 1Scale 281] this Court has explained why it may be necessary toprovide reservations in favour of the Scheduled Tribes that exceed50% of the seats in panchayats located in the Scheduled Areas.

However, such exceptional considerations cannot beinvoked when we are examining the quantum ofreservations in favour of backward classes for the purposeof local bodies located in general areas. In suchcircumstances, the vertical reservations in favour of SCs/STs/OBCs cannot exceed the upper limit of 50% whentaken together. It is obvious that in order to adhere to thisupper ceiling, some of the States may have to modify theirlegislations so as to reduce the quantum of the existingquotas in favour of OBCs.”

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

“Conclusion

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

(i) The nature and purpose of reservations in the contextof local self-government is considerably different fromthat of higher education and public employment. In thissense, Article 243-D and Article 243-T form a distinctand independent constitutional basis for affirmativeaction and the principles that have been evolved inrelation to the reservation policies enabled by Articles15(4) and 16(4) cannot be readily applied in the contextof local self-government. Even when made, they neednot be for a period corresponding to the period ofreservation for the purposes of Articles 15(4) and 16(4),but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6) areconstitutionally valid since they are in the nature ofprovisions which merely enable the State Legislatures A

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to reserve seats and chairperson posts in favour ofbackward classes. Concerns about disproportionatereservations should be raised by way of specificchallenges against the State legislations.

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(iii) We are not in a position to examine the claimsBabout overbreadth in the quantum of reservationsprovided for OBCs under the impugned Statelegislations since there is no contemporaneousempirical data. The onus is on the executive toconduct a rigorous investigation into the patternsof backwardness that act as barriers to politicalCparticipation which are indeed quite different fromthe patterns of disadvantages in the matter ofaccess to education and employment. As we haveconsidered and decided only the constitutional validityof Articles 243-D(6) and 243-T(6), it will be open toDthe petitioners or any aggrieved party to challenge anyState legislation enacted in pursuance of the saidconstitutional provisions before the High Court. We areof the view that the identification of “backwardclasses” under Article 243-D(6) and Article 243-T(6) should be distinct from the identification ofESEBCs for the purpose of Article 15(4) and thatof backward classes for the purpose of Article16(4).

(iv) The upper ceiling of 50% vertical reservations infavour of SCs/STs/OBCs should not be breachedFin the context of local self-government.Exceptions can only be made in order to safeguardthe interests of the Scheduled Tribes in the matterof their representation in panchayats located inthe Scheduled Areas.

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(v) The reservation of chairperson posts in the mannercontemplated by Articles 243-D(4) and 243-T(4) isconstitutionally valid. These chairperson posts cannotbe equated with solitary posts in the context of publicemployment.”

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7. On a fair reading of the exposition in the reported decision,what follows is that the reservation for OBCs is only a “statutory”dispensation to be provided by the State legislations unlike the“constitutional” reservation regarding SCs/STs which is linked to theproportion of population. As regards the State legislations providing forreservation of seats in respect of OBCs, it must ensure that in no casethe aggregate vertical reservation in respect of SCs/STs/OBCs takentogether should exceed 50 per cent of the seats in the concerned localbodies. In case, constitutional reservation provided for SCs and STs wereto consume the entire 50 per cent of seats in the concerned local bodiesand in some cases in scheduled area even beyond 50 per cent, in respectof such local bodies, the question of providing further reservation toOBCs would not arise at all. To put it differently, the quantum of reservationfor OBCs ought to be local body specific and be so provisioned to ensurethat it does not exceed the quantitative limitation of 50 per cent(aggregate) of vertical reservation of seats for SCs/STs/OBCs takentogether.

8. Besides this inviolable quantitative limitation, the State Authoritiesare obliged to fulfil other pre-conditions before reserving seats for OBCsin the local bodies. The foremost requirement is to collate adequatematerials or documents that could help in identification of backwardclasses for the purpose of reservation by conducting a contemporaneousrigorous empirical inquiry into the nature and implications of backwardnessin the concerned local bodies through an independent dedicatedCommission established for that purpose. Thus, the State legislationscannot simply provide uniform and rigid quantum of reservation of seatsfor OBCs in the local bodies across the State that too without a properenquiry into the nature and implications of backwardness by anindependent Commission about the imperativeness of such reservation.Further, it cannot be a static arrangement. It must be reviewed fromtime to time so as not to violate the principle of overbreadth of suchreservation (which in itself is a relative concept and is dynamic). Besides,it must be confined only to the extent it is proportionate and within thequantitative limitation as is predicated by the Constitution Bench of thisCourt.

9. Notably, the Constitution Bench adverted to the fact thatprovisions of most of the State legislations may require a relook, but leftthe question regarding validity thereof open with liberty to raise specific A

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Achallenges thereto by pointing out flaws in the identification of thebackward classes in reference to the empirical data. Further, theConstitution Bench expressed a sanguine hope that the concerned Statesought to take a fresh look at policy making with regard to reservations inlocal self-government in light of the said decision, whilst ensuring thatsuch a policy adheres to the upper ceiling including by modifying theirBlegislations — so as to reduce the quantum of the existing quotas infavour of OBCs and make it realistic and measurable on objectiveparameters.

10. Despite this declaration of law and general observations cumdirections issued to all the States on the subject matter, the legislature ofCthe State of Maharashtra did not take a relook at the existing provisionswhich fell foul of the law declared by the Constitution Bench of thisCourt. As a matter of fact, couple of writ petitions[6] came to be filed inthe Bombay High Court in which solemn assurance was given on behalfof the State of Maharashtra that necessary corrective measures in lightDof the decision of this Court, will be taken in right earnest. The situation,however, remained unchanged.

11. As a matter of fact, no material is forthcoming as to on whatbasis the quantum of reservation for OBCs was fixed at 27 per cent,when it was inserted by way of amendment in 1994. Indeed, when theEamendment was effected in 1994, there was no guideline in existenceregarding the modality of fixing the limits of reserved seats for OBCs asnoted in the decision of the Constitution Bench in K. Krishna Murthy(supra). After that decision, however, it was imperative for the State toset up a dedicated Commission to conduct contemporaneous rigorousempirical inquiry into the nature and implications of backwardness andFon the basis of recommendations of that Commission take follow upsteps including to amend the existing statutory dispensation, such as toamend Section 12(2)(c) of the 1961 Act. There is nothing on record thatsuch a dedicated Commission had been set up until now. On the otherhand, the stand taken by the State Government on affidavit, before thisGCourt, would reveal that requisite information for undertaking suchempirical inquiry has not been made available to it by the Union of India.In light of that stand of the State Government, it is unfathomable as tohow the respondents can justify the notifications issued by the StateElection Commission to reserve seats for OBCs in the concerned local H6 W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018

H6 W.P. (Civil) No.6676 of 2016 and W.P. (Civil) No.5333 of 2018

bodies in respect of which elections have been held in the year December2019/January 2020, which notifications have been challenged by way ofpresent writ petitions. This Court had allowed the elections to proceedsubject to the outcome of the present writ petitions.

12. Be that as it may, it is indisputable that the triple test/conditionsrequired to be complied by the State before reserving seats in the localbodies for OBCs has not been done so far. To wit, (1) to set up a dedicatedCommission to conduct contemporaneous rigorous empirical inquiry intothe nature and implications of the backwardness qua local bodies, withinthe State; (2) to specify the proportion of reservation required to beprovisioned local body wise in light of recommendations of theCommission, so as not to fall foul of overbreadth; and (3) in any casesuch reservation shall not exceed aggregate of 50 per cent of the totalseats reserved in favour of SCs/STs/OBCs taken together. In a givenlocal body, the space for providing such reservation in favour of OBCsmay be available at the time of issuing election programme (notifications).However, that could be notified only upon fulfilling the aforementionedpre-conditions. Admittedly, the first step of establishing dedicatedCommission to undertake rigorous empirical inquiry itself remains amirage. To put it differently, it will not be open to respondents to justifythe reservation for OBCs without fulfilling the triple test, referred toabove.

13. As regards Section 12(2)(c) of the 1961 Act inserted in 1994,the plain language does give an impression that uniform and rigid quantumof 27 per cent of the total seats across the State need to be set apart byway of reservation in favour of OBCs. In light of the dictum of theConstitution Bench, such a rigid provision cannot be sustained much lesshaving uniform application to all the local bodies within the State. Instead,contemporaneous empirical inquiry must be undertaken to identify thequantum qua local body or local body specific.

14. In our opinion, the provision in the form of Section 12(2)(c)can be saved by reading it down, to mean that reservation in favour ofOBCs in the concerned local bodies may be notified to the extent, that itdoes not exceed 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together. In other words, the expression “shall be”preceding 27 per cent occurring in Section 12(2)(c), be construed as“may be” including to mean that reservation for OBCs may be up to 27per cent but subject to the outer limit of 50 per cent aggregate in favour A

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Aof SCs/STs/OBCs taken together, as enunciated by the ConstitutionBench of this Court. On such interpretation, Section 12(2)(c) can besaved and at the same time, the law declared by the Constitution Benchof this Court can be effectuated in its letter and spirit.

15. The argument of the respondent-State that the reservations inBfavour of OBCs must be linked to population, is very wide and tenuous.That plea if countenanced, will be in the teeth of the dictum of theConstitution Bench of this Court wherein it has been noted and rejected.The Court has expounded about the distinction in the matter of reservationin favour of SCs and STs on the one hand, which is a “constitutional”reservation linked to population unlike in the case of OBCs which is aC“statutory” dispensation. Therefore, the latter reservation for OBCs mustbe proportionate in the context of nature and implications of backwardnessand in any case, is permissible only to the extent it does not exceed theaggregate of 50 per cent of the total seats in the local bodies reservedfor SCs/STs/OBCs taken together.D

16. Indeed, this Court had allowed the State Election Commissionto conduct elections on the basis of old dispensation in terms of ordersdated 28.08.2019, 07.11.2019 and 13.12.2019, by recording prima facieview as noted in the order dated 18.12.2019. However, it was madeamply clear that the elections in respect of five districts (Nagpur, Washim,EAkola, Dhule and Nandurbar) were allowed to proceed subject to theoutcome of present writ petition(s) questioning the validity of Section12(2)(c) of the 1961 Act. Thus understood, the respondents cannot takebenefit of the prima facie observations to repel the challenge to the olddispensation being continued despite the decision of the ConstitutionBench of this Court and more particularly, to the notifications reservingFseats for OBC candidates exceeding the quantitative limitation ofaggregate 50 per cent of total seats in the local bodies concerned.

17. In light of the finding recorded hitherto (that no inquiry muchless contemporaneous rigorous empirical inquiry into the nature andimplications of backwardness by a dedicate Commission established byGthe State for the purpose has been undertaken), it is not open to theState to fall back on Section 12(2)(c) as enacted in 1994. That provision,as aforementioned, is an enabling provision and would become functionaland operational only upon fulfilling triple test as specified by theConstitution Bench of this Court. That is the sine qua non or theHquintessence for exercise of power to reserve seats for OBCs in the local bodies. Indeed, the exercise of power to reserve seats for OBCssprings from Section 12(2)(c) of the 1961 Act, but that is hedged byconditions and limitations specified by the Constitution Bench of thisCourt and would not get ignited until such time.

18. Thus understood, the impugned notifications issued by the StateElection Commission reserving seats for OBCs in the concerned localbodies, suffer from the vice of foundational jurisdictional error. Theimpugned notification(s) to the extent it provides for reservation for OBCsin the concerned local bodies, is, therefore, void and without authority oflaw.

19. A priori, the elections conducted by the State ElectionCommission on the basis of such notifications concerning reserved OBCseats alone are vitiated and must be regarded as non est in the eyes oflaw from its inception in the wake of declaration of law in that regard bythe Constitution Bench of this Court. The fact that it will impact largenumber of seats throughout the five districts or elsewhere where suchelections are conducted in 2019/2020, would make no difference. For,such reservation was not permissible in law unless the essential steps,as propounded by the Constitution Bench of this Court, had been takenbefore issuing the election notifications, that too only to the extent ofquantitative limitation. This position would apply in full measure, to allelections conducted in respect of reserved OBC seats by the StateElection Commission duly notifying that the same will be subject to theoutcome of these writ petitions. The State Election Commission mustproceed to take follow up steps and notify elections for seats vacated interms of this decision for being filled up by open/general categorycandidates for the remainder tenure of the concerned Gram Panchayatsand Samitis. We are inclined to take this view as it is not possible toidentify which of the reserved seat for OBCs in the concerned localbody would fall foul of the law declared by the Constitution Bench ofthis Court, amongst the total seats reserved for OBCs.

20. The respondent-State through learned counsel had urged thatthis Court ought not to entertain the present writ petitions as writ petitions[7]were still pending before the High Court for the same relief. We are notimpressed by this hyper technical objection. It is true that petitioners intwo writ petitions had first approached the High Court, but still the issue 7 W.P. (Civil) No. 2756 of 2019; W.P. (Civil) No. 2893 of 2019 and W.P. (Civil) No.9159 of 2020

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Aunder consideration needs to be answered at the instance of petitionersin other two writ petitions praying for the same reliefs. Indeed, it wouldhave been possible for us to request the High Court to decide the issuein the first instance but as the matter essentially pertains to the width ofdeclaration and directions given by the Constitution Bench of this Courtin K. Krishna Murthy (supra) and its implementation in its letter andBspirit, we deem it appropriate to answer the issue under consideration.

21. It has been faintly suggested by the respondent-State in itswritten submission that the writ petition may be set down for furtherhearing. However, we fail to fathom why such a plea has been put forthespecially when the State has already filed a consolidated affidavit inCthis Court, apart from the comprehensive written submissions filed afterclosure of oral arguments. In our opinion, no fruitful purpose will beserved by showing that indulgence. For, the matter is capable of and isbeing disposed of on the basis of undisputed fact that before instructingthe State Election Commission to reserve seats for OBC groups in theDlocal bodies, no attempt was made by the State Government to set up adedicated Commission to conduct contemporaneous rigorous empiricalinquiry into the nature and implications of backwardness, and then to actupon the report of the Commission. That fact is reinforced from theconsolidated affidavit filed by the respondent-State in SLP (Civil) No.33904 of 2017, which was the lead matter until it was disposed of onE17.02.2021, after analogous hearing with the present writ petitions. Thatconsolidated affidavit was filed pursuant to the directions given by thisCourt vide order dated 19.01.2021, which reads thus:

F“Heard learned counsel for the parties. We direct the Respondent-State to file a consolidated affidavit dealing with the issues raisedin each of these proceedings including in the form of interlocutoryapplication(s) to be served on learned counsel appearing for theconcerned petitioners/applicants within three weeks from today.

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

List on 11.02.2021.”

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VIKAS KISHANRAO GAWALI v. STATE OF MAHARASHTRA& ORS. [A.M. KHANWILKAR, J.]

Accordingly, the consolidated affidavit dated 04.02.2021 came tobe filed by the State duly sworn by the Deputy Commissioner(Establishment), which reads thus:

“COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT

I, D.D. Shinde age 55 years, Occ. Service, presently working asDeputy Commissioner (Establishment) in the office of DivisionalCommissioner, Nashik, Maharashtra, do hereby submit on solemnaffirmation as under that:-

1. I am the authorized officer of the respondent in the presentSpecial Leave Petition. I am also authorized to file CounterAffidavit on behalf of Respondent as such I am well conversantwith the facts and circumstances of the case and hence I amcompetent and authorized to swear this Counter Affidavit on behalfof the Respondent.

2. I have gone through the contents of the present Special LeavePetition in reply thereto the answering Respondent seeks to filethis Counter Affidavit in order to oppose the averments andcontentions of the Special Leave Petition with liberty of thisHon’ble Court to file a further Counter Affidavit as and whennecessary and with the permission of this Hon’ble Court.

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

4. I say that the elections were held to the Zilla Parishads of fivedistricts in Maharashtra, namely Nagpur, Washim, Akola, Dhuleand Nandurbar in December 2019/January 2020, pursuant to theorders passed by this Hon’ble Court. In all the aforesaid districts,the reservation exceeded 50%. It is the contention of the Petitionersthat in all the aforesaid districts the reservation could not haveexceeded 50% as it was the upper limit as set out in the judgmentsof Indra Sawhney vs. Union of India reported in (1992) 3SCC 217 and the judgment of K. Krushnamurthy vs. Union ofIndia reported in (2010) 7 SCC 202. The only issue that

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essentially remains for consideration of this Hon’ble Court, in allthese matters is whether the reservation in all the aforesaid fivedistricts could have exceeded 50%.

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5. I repeat and reiterate that the elections held in December 2019/January 2020 have been held on the basis of the old dispensation,but for future elections, the State Government will have to providecategory wise breakup of population and in particular regardingBackward Class Category (BCC), as the information can beprovided only by the Central Government. It is therefore submittedthat, I.A. No.188324/2019 be allowed and the Registrar Generalof India, Ministry of Home Affairs, Government of India and theSecretary, Ministry of Social Justice and Welfare be added asparty respondents in the aforesaid Special Leave Petitions. It isfurther submitted that, I.A. No.188318/2019 be allowed and theRegistrar General of India, Ministry of Home Affairs, Governmentof India and the Secretary, Ministry of Social Justice and Welfarebe directed to make available the data of Socio-Economic Census B

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2011, to the extent only relating to the caste of the citizens ofRural Maharashtra, to enable the Government of Maharashtra tocalculate population belonging to castes that make a part ofBackward Classes of Citizens (BCC) in Maharashtra.

E6. I repeat and reiterate with regard to the decision of theConstitution Bench of this Hon’ble Court in K. Krishnamurthy(supra), and in particular paragraph no.83(iv) thereof, it is submittedwith respect that, a reading of paragraphs no.59, 64, 66 and 67thereof, create a doubt as to whether 50% vertical reservationsreferred to in paragraph no.82(iv) can be regarded as unalterable.FA breakup of the figures in respect of the five districts (mentionedin the order dated 18.12.2019) show that if the direction given inparagraph no.82(iv) are to be strictly complied with, it may not bepossible to give effect thereto, at least in respect of Dhule andNandurbar districts which have high tribal population.

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7. I submit that in the case of K. Krushna Murthy (Supra) theHon’ble Constitution Bench of this Hon’ble Court lays down thatthe nature and purpose of reservations in the context of local self-government is considerably different from that of higher educationand public employment. It further lays down that Article 243-Dand Article 243-T form a distinct and independent constitutional H

basis for affirmative action and the principle that have been evolvedin relation to the reservation policies enabled by Articles 15(4)and 16(4) of the Constitution, cannot be readily applied in thecontext of local self-government.

8. I submit that in the absence of explicit constitutional guidanceas to the quantum of reservation in favour of backward classes inlocal self-government, the rule of thumb is that of ‘proportionatereservation’. Admittedly, reservations in excess of 50% do existin some exceptional cases, when it comes to the domain of politicalrepresentation, which is the outcome of exceptional considerationsin relation to these areas. Similarly, vertical reservations in excessof 50% are permissible in the composition of local self-governmentinstitutions located in the Fifth Schedule Areas. I submit that inthe judgment of Union of India v. Rakesh Kumar reported in(2010) 4 SCC 50, this Hon’ble Court has explained why it maybe necessary to provide reservations in favour of the ScheduledTribes that exceed 50% of the seats in local self-governmentslocated in the Scheduled Area.

9. With regard to the elections held in December 2019/January2020, in Nandurbar district, 44 out of 56 seats were reserved forScheduled Tribes (ST) category which was in keeping with thepopulation ratio. This itself consumed 50% upper limit providedby the Constitution Bench of this Hon’ble Court, leaving 1reservation for Scheduled Caste (SC) Category. In respect ofelections held in December 2019/January 2020, in Dhule district,23 out of 56 seats were reserved for Scheduled Tribes (ST)category which was in keeping with the population ratio. Thisitself consumed 50% upper limit provided by the Constitution Benchof this Hon’ble Court, leaving 3 reservation for Scheduled Caste(SC) Category. In Dhule District the talukas of Saktri and Shirpurare partly ‘Scheduled Areas’. In Nandurbar District, the talukasof Navapur, Taloda, Akkalkuwa and Akrani are fully ‘ScheduledAreas’ and the blocks of Nandurbar and Shahda are partly‘Scheduled Areas’. I say that both Dhule and Nandurbar Districts,being partly ‘Scheduled Areas’ would fall within the exceptionslaid down in the case of Indra Sawhney (Supra). Further, thedecision of Indra Sawhney (Supra) was given in respect ofreservation measures enabled by Article 16(4) of the Constitution.

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AThe principles of reservation which are applicable for publicemployment and for admission to educational institutions cannotbe readily applied in respect of a reservation policy made to protectthe interests of the Scheduled Tribes by assuring them of majorityof reservation in Scheduled Areas. Further, the case of IndraSawhney (Supra) reveals that though an upper limit of 50% wasBprescribed for reservations in public employment, the said decisionrecognizes the need of exceptional treatment in somecircumstances. The case of Indra Sawhney (supra) prescribesan upper limit of 50% (in paragraph 806 of the judgment) becauseArticle 16(4) deals with ‘adequate representation’ and notC‘proportionate representation’. Hence, the elections held inDecember 2019/January 2020 ought not to set aside for the districtsof Dhule and Nandurbar districts.

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10. In any event, as set out in detail in the Affidavit dated13.3.2020, I say that the State Government is unable toprovide category wise breakup of population and inparticular regarding Backward Class Category (BCC), asthat information can be provided only by the CentralGovernment and the same is not forthcoming. It is importantthat the data of Socio-Economic to the extent only of fieldrelating to the caste of the citizens of Rural Maharashtra,be provided to the State Government by the CentralGovernment, so as to enable the State Government tocalculate population belonging to castes that make a partof Backward Caste of Citizens (BCC) in Maharashtra. Withregard to the elections held in December 2019/January 2020, inNagpur, Washim, and Akola districts, the reservations exceeded50% of the seats, only by 6% to 8% and ought not to be set asideby this Hon’ble Court.

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11. I repeat and reiterate that it is important that the data of Socio-Economic to the extent only of field relating to the caste of thecitizens of Rural Maharashtra, be provided to the State Governmentby the Central Government, so as to enable the State Governmentto calculate population belonging to castes that make a part ofBackward Caste of Citizens (BCC) in Maharashtra.

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

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

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Hence this Counter Affidavit.

22. As matter of fact, this affidavit plainly concedes that in caseof some local bodies, the reservation has far exceeded 50 per cent withnominal seats for general category. At this stage, it may be relevant tomention that the consolidated affidavit refers to the previous affidavit(s)dated 5.11.2019 and 13.03.2020 which, however, do not contain anyother statement, or any additional information, requiring scrutiny in thecontext of the issues answered in this decision. The consolidated affidavitalso refers to three interlocutory applications filed in the disposed ofSLP (Civil) Nos. 33904-33910 of 2017. IA No.188324 of 2019 was filedfor direction to allow impleadment of Registrar General of India, Ministryof Home Affairs, Government of India and Secretary, Ministry of SocialJustice and Welfare as party respondents in the SLP. That was becausethe State had sought directions against that party to furnish census dataon the basis of which analysis could be done by the State for providingreservation to OBCs in the local bodies, in the elections due in 2019/2020. That relief was claimed by the State in IA No.188318 of 2019.Since the said elections are completed, the State is free to pursue withthe Union of India for getting requisite information which can be thenmade available to the dedicated Commission to be established by it forconducting a contemporaneous rigorous empirical inquiry into the natureand implications of backwardness of the concerned groups. As regardsIA No.108915 of 2019 referred to in the consolidated affidavit, the reliefclaimed was to defer the impending elections in the concerned ZillaParishads and Panchayat Samitis. Those elections having beencompleted in 2019/2020, obviously the relief as claimed is worked out.We, therefore, fail to understand as to why the State Government wantsfurther hearing of the matter on such flimsy and specious grounds. Toobserve sobriety, we say no more.

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A23. We, however, appreciate the stand taken by the State ElectionCommission which is in conformity with the exposition of the ConstitutionBench of this Court; and that it had issued impugned notifications bymaking it amply clear to all concerned that the elections were beingconducted as directed by this Court and would be subject to the outcomeof the present writ petitions. The elections were held only after thisBCourt directed the State Election Commission to ensure that the electionsin the concerned Zilla Parishads and Panchayat Samitis of as manyas five districts (out of 36 districts) of the State, were not being conductedeven after more than two years from the expiry of term of the outgoingcouncillors/members of the concerned local bodies.C

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24. The State Election Commission had invited our attention tothe fact that, provision similar to Section 12(2)(c) of the 1961 Act regardingreservation for OBCs finds place in other State enactments[8] concerningthe establishment of Village Panchayat, Municipal Council, NagarPanchayat, Corporation, etc. Needless to observe that the view takenDin this judgment would apply with full force to the interpretation andapplication of the provisions of the stated Act(s) and the State Authoritiesmust immediately move into action to take corrective and follow upmeasures in right earnest including to ensure that future elections to theconcerned local bodies are conducted strictly in conformity with theexposition of this Court in K. Krishna Murthy (supra), for providingEreservation in favour of OBCs.

25. In conclusion, we hold that Section 12(2)(c) of the 1961 Act isan enabling provision and needs to be read down to mean that it may beinvoked only upon complying with the triple conditions (mentioned inparagraph 12 above) as specified by the Constitution Bench of this Court,Fbefore notifying the seats as reserved for OBC category in the concernedlocal bodies. Further, we quash and set aside the impugned notificationsto the extent they provide for reservation of seats for OBCs being voidand non est in law including the follow up actions taken on that basis. Inother words, election results of OBC candidates which had been madeGsubject to the outcome of these writ petitions including so notified in theconcerned election programme issued by the State Election Commission, 8 (1) The Maharashtra Village Panchayats Act, 1959 – Section 10(2)(c)

(2) Maharashtra Municipal Councils, Nagar Panchayats and Industrial TownshipsAct, 1965 – Sections 9(2)(d) and 341(B)(4)H(3) The Maharashtra Municipal Corporations Act, 1949 – Section 5A(1)(c)

are declared as non est in law and the vacancy of seat(s) caused onaccount of this declaration be forthwith filled up by the State ElectionCommission with general/open candidate(s) for the remainder term ofthe concerned local bodies, by issuing notification in that regard.

26. As a consequence of this declaration and direction, all actsdone and decisions taken by the concerned local bodies due to participationof members (OBC candidates) who have vacated seats in terms of thisdecision, shall not be affected in any manner. For, they be deemed tohave vacated their seat upon pronouncement of this judgment,prospectively. This direction is being issued in exercise of plenary powerunder Article 142 of the Constitution of India to do complete justice.

27. It was urged that this Court ought not to exercise plenarypower under Article 142 and abjure from disturbing the completedelections. However, we are not impressed with this contention becauseparticipation in the elections conducted since December 2019 to theconcerned local bodies across the State of Maharashtra was on clearunderstanding that the results of the reserved seats for OBCs would besubject to the outcome of these writ petitions. That was clearly notifiedby the State Election Commission in the election programme publishedby it at the relevant time, in consonance with the directions given by thisCourt vide interim orders. Therefore, the reliefs as claimed and beinggranted in terms of this judgment, are in consonance with liberty givenby this Court.

28. Accordingly, these writ petitions must partly succeed. Thechallenge to the validity of Section 12(2)(c) of the 1961 Act is negatived.Instead, that provision is being read down to mean that reservation infavour of OBCs in the concerned local bodies can be notified to theextent that it does not exceed aggregate 50 per cent of the total seatsreserved in favour of SCs/STs/OBCs taken together. In other words,the expression “shall be” preceding 27 per cent occurring in Section12(2)(c), be construed as “may be” including to mean that reservationfor OBCs may be up to 27 per cent but subject to the outer limit of 50per cent aggregate in favour of SCs/STs/OBCs taken together, asenunciated by the Constitution Bench of this Court. However, theimpugned notifications/orders dated 27.7.2018 and 14.2.2020 and all othersimilar notifications issued by the State Election Commission during thependency of these writ petitions mentioning that the elections to theconcerned local bodies were being held subject to the outcome of these A

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Awrit petitions, are quashed and set aside to the extent of providingreservation of seats in the concerned local bodies for OBCs. As aconsequence, follow up steps taken on the basis of such notificationsincluding the declaration of results of the candidates against the reservedOBC seats in the concerned local bodies, are declared non est in law;and the seats are deemed to have been vacated forth with prospectivelyBby the concerned candidate(s) in terms of this judgment. The StateElection Commission shall take immediate steps to announce electionsin respect of such vacated seats, of the concerned local bodies, not laterthan two weeks from today, to be filled by general/open categorycandidates for the remainder term of the Panchayat/Samitis. OrderedCaccordingly.

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

All pending applications also stand disposed of.

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Ankit Gyan

Writ petitions disposed of.

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