Ashok Sharma vs The State Of Madhya Pradesh
2021 Latest Caselaw 8041 MP

          1                                    WP.No. 20262/2020

          HIGH COURT OF MADHYA PRADESH

                     BENCH AT GWALIOR



                      DIVISION BENCH

                             PRESENT

              SHEEL NAGU & ANAND PATHAK, JJ.



                 ( Writ Petition No. 20262/2020)

                            Ashok Sharma
                               Versus
                      State of M.P. & ors.
==============================================
Shri Harish Dixit, learned counsel for the petitioner.

Shri   D.D.Bansal,    learned    Government     Advocate        for

respondents/State.

==============================================
                       ORDER

(Passed on this (1st) Day of December, 2021)

Anand Pathak, J.

1. The instant petition has been preferred by the petitioner

being aggrieved by reservation of Wards in Nagar Panchayat

Malanpur; wherein, out of total 15 Wards, 12 have been reserved

for Scheduled Castes/Scheduled Tribes/Other Backward Class

and Women Category and only three Wards have been kept

unreserved. Such reservation which is more than 50 per cent,

according to learned counsel for the petitioner is unconstitutional

and liable to be quashed.

2. By way of filling this petition, petitioner has prayed

following reliefs:-

"(i) That, the reservation of wards in Nagar Panchayat Malanpur be directed to be quashed and same be directed to be made in accordance with the provisions prescribed under Rule 3 and 4 of the Rules of 1994 and it may be further directed that the respondents shall not cross the limit of 50% while reserving the wards in Nagar Panchayat in future.

(ii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted."

3. At the outset, learned counsel for the petitioner beside

raising grounds, placed the judgment rendered by Apex Court in

the case of Vikas Kishanrao Gawali Vs. State of Maharashtra

& Ors., (2021) 6 SCC 73 as well as division Bench decision of

this Court at Principal Seat Jabalpur in the case of Md. Azad Vs.

State of M.P. & Ors., (W.P.No. 1302/2021 decided on

24/2/2021) to submit that reservation for OBC can be made only

on such number of remaining seats after reserving the seats for

Scheduled Castes and Scheduled Tribes, which ultimately does

not lead to reserving seats more than 50%. According to learned

counsel for the petitioner Section 29-B(2) of the M.P.

Municipalities Act, 1961 and Rule 3 of the M.P. Municipalities

(Reservation of Wards for Scheduled Castes, Scheduled Tribes,

Other Backward Classes and and Women) Rules, 1994 (for short

'Rules of 1994") also contemplates such framework.

4. Learned counsel for the State tried to contest the case on

the basis of reply so filed but could not dispute passing of such

orders in the given facts situation.

5. Heard.

6. Para 28 of judgment of Apex Court in the matter of Vikas

Kishanrao Gawali (supra) reads as under:-

"28. Accordingly, these writ petitions must partly succeed. The challenge 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 in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 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 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together, as enunciated by the Constitution Bench of this Court. However, the impugned notifications/orders dated 27.7.2018 and 14.2.2020 and all other similar notifications issued by the State Election Commission during the pendency of these writ petitions mentioning that the elections to the concerned local bodies were being held subject to the outcome of these writ petitions, are quashed and set aside to the extent of providing reservation of seats in the concerned local bodies for OBCs. As a consequence, follow up steps taken on the basis of such notifications including the declaration of results of the candidates against the reserved OBC

seats in the concerned local bodies, are declared non est in law; and the seats are deemed to have been vacated forthwith prospectively by the concerned candidate(s) in terms of this judgment. The State Election Commission shall take immediate steps to announce elections in respect of such vacated seats, of the concerned local bodies, not later than two weeks from today, to be filled by general/open category candidates for the remainder term of the Panchayat/Samitis. Ordered accordingly."

7. Same spirit is echoed in the judgment of Division Bench of

this Court at Principal Seat Jabalpur in the matter of Md. Azad

(supra) whereby; effect of different provisions of M.P.

Municipalities Act, 1961 vis-a-vis rules framed thereunder, has

been discussed and facts of present case move in same factual

realm. Thus, order passed by Division Bench of this Court in the

matter of Md. Azad (supra) shall apply mutatis mutandis in the

present set of facts also.

8. In view of the aforesaid, this writ petition stands disposed

of in terms of the order passed in Md. Azad (supra). The

directions contained therein shall apply mutatis mutandis with

full force to the petitioner's case also.

9. Resultantly, petition is allowed and notification dated

9/11/2020 is quashed to the extent of providing reservation of

seats to Other Backward Class (OBC) with a direction to the

respondents to provide reservation only on those seats to the OBC

which comes within 50% limit so as to undertake fresh exercise

to provide such reservation in terms of Rule 3(3) of the Rules of

1994.

Parties to act accordingly.

                                                                         (Sheel Nagu)                         (Anand Pathak)
                                                                            Judge                                 Judge


          jps/-
JAI

Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya

PRAKASH Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4 cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780 D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01 433EBD48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2021.12.01 17:05:40 +05'30'