Madhya Pradesh High Court
Ashok Kumar Mishra vs The State Of Madhya Pradesh on 1 April, 2022
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 1st OF APRIL, 2022
WRIT PETITION No. 5679 of 2021
Between:-
ASHOK KUMAR MISHRA S/O LATE K.K.MISHRA ,
AGED ABOUT 61 YEARS, OCCUPATION:
RETD.GOVT. SERVANT, R/O WARD,
NO.9NAWROZABAD, DISTT.UMARIA M.P
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANUJ SHRIVASTAVA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR ITS
PRINCIPAL SECRETARY URBAN
ADMINISTRATION AND DEVELOPMENT,VALLABH
BHAWAN BHOPAL M.P DISTT. (MADHYA
PRADESH)
2. PRINCIPAL SECRETARY MADHYA PRADESH
STATE ELECTION COMMISSION VINDHYACHAL
BHAWAN BHOPAL (MADHYA PRADESH)
3. THE COLLECTOR U M A R I A DISTT.UMARIA
(MADHYA PRADESH)
4. NAGAR PARISHAD NAWROZABAD THROUGH
CHIEF MUNICIPAL OFFICER NAWROZABAD
DISTT.UMARIA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI S.S. CHOUHAN, GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE & SHRI SIDDHARTH SETH, ADVOCATE FOR
RESPONDENT NO.2 )
This petition coming on for admission this day, JUSTICE MANINDER
S. BHATTI passed the following:
ORDER
The petitioner is assailing the notification dated 15/102/2020 contained in
Annexure P-3 by which 10 out of 15 wards in Nagar Parishad Nawrozabad,
District Umaria have been reserved for SC (2), ST (4) and OBC (4) categories.
Signature Not Verified
SAN
The submission of the counsel for the petitioner is that by the impugned
Digitally signed by NAVEEN NAGDEVE action, the respondents seek to reserve more than 50 % opf the wards, which is
Date: 2022.04.07 16:41:09 IST
contrary to the statutory provisions of section 29-A of the M.P. Municipalities Act,
1961 as well the law laid down by the Apex Court in K. Krishna Murthy &
Others Vs. Union of India & another (2010) 7 SCC 202.
The petitioner further submits that the issue in question, in fact, has already
been considered and decided by the co-ordinate bench vide order dated
24/02/2021 passed in W.P. No. 1302/2021 (Mohammad Azad Vs. State of
Madhya Pradesh & Others). It is also brought to our notice that the said order
was challenged before the Supreme Court however, the Supreme Court has also
dismissed the Special Leave Petition vide order dated 15/12/2021.
The counsel for the respondents do not dispute that the matter is covered by
the decision of the co-ordinate bench in the case of Mohammad Azad (supra).
We have heard learned counsel for the parties.
The co-ordinate bench while taking note of the ratio laid down in the case of
K. Krishna Murthy (supra) held that there could not have been more than 50%
reservation in violation of the statutory provision as well as the mandate of the
Constitution.
The relevant paras 13 to 15 of the order passed in Mohammad Azad (supra)
are reproduced hereunder:-
"13. It is evident from the letter dated 29.08.2019 (Annexure P-
6) that the Government taking note of the fact that out of 28
Wards in the Municipal Council Dhanpuri, 15 Wards have been
reserved for Scheduled Castes, Scheduled Tribes and Other
Backward Classes which is in excess of 50%, directed the
Collector, Shahdol that as per Section 29-A of the Act of 1961,
reservation cannot exceed the limit of 50%. The Collector was
required to re-submit the proposal for reservation in the
Municipal Council, Dhanpuri in conformity with the Rules. The
respondents in their counter affidavit have not denied the factum
of the said direction of the Government to the Collector.
However, the learned counsel for the respondents orally argued
that the aforesaid communication was issued much prior to
issuance of notice under Rule 7 of the Rules of 1994 and no
interference can be made therewith now at this stage. It is thus
evident that the State Government had already directed the
Collector for making fresh proposal of reservation in the
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SAN Municipality, intending to adhere to the upper limit of 50% in
terms of Section 29-A of the Act, which was in conformity with
Digitally signed by NAVEEN NAGDEVE
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ratio of the judgment rendered by the Constitution Bench of the
Supreme Court in the case of K. Krishna Murthy (supra).
14. Indubitably, the Municipal Council Dhanpuri does not fall
within the Schedule-V areas and therefore, the upper limit of
50% for providing reservation in favour of Scheduled Tribes
cannot be breached in this case. The Supreme Court clarified
this aspect in Rakesh Kumar (supra) as to why it may be
necessary to provide reservation in favour of the Scheduled
Tribes that exceeds 50% of the seats in Panchayats located in
Scheduled Areas. The Constitution Bench of Supreme Court
therefore, in the case of K. Krishna Murthy (supra)
categorically held that such exceptional considerations cannot
be invoked while examining the quantum of reservation in
favour of the Backward Classes for the purpose of local bodies
located in general areas. It was held that in such circumstances,
the vertical reservation in favour of SCs/STs/OBCs, when
taken together, cannot exceed the upper limit of 50%. Their
Lordships held that it is obvious that in order to adhere to this
upper ceiling, some of the States may have to modify their
legislation so as to reduce the quantum of existing quotas in
favour of OBCs. No doubt, sub-section (2) of Section 29-A of
the Act of 1961 provides that twenty-five percent of the total
number of Wards shall be reserved for Other Backward
Classes in Municipality but this provision is subject to two
riders, firstly, that twenty-five percent need not be rigidly
applied as it is preceded by the expression “as nearly as
possibleâ€; and secondly, it prescribes that such 25% of total
number of Wards shall be reserved for OBC where 50% or less
seats are reserved for Scheduled Castes and Scheduled Tribes.
In other words, the rider of upper ceiling of 50% is implicit
even in sub-section (2) of Section 29-A of the Act of 1961.
15. In view of our preceding analysis of law, the writ petition
deserves to succeed. The notification dated 28.11.2020
(Annexure P-1) to the extent of providing reservation of 07
seats to Other Backward Classes (OBC) is set-aside with a
direction to the respondents to provide reservation only for 06
(six) seats to the OBC so as to implement the direction of the
Government dated 29.08.2019 and undertake a fresh exercise to
provide such reservation by rotation in terms of Rule 3(3) of
the Rules of 1994. Entire exercise shall be undertaken and
completed at the earliest but not later than 15 days."
Thus, since the controversy herein is no more res integra, the present
petition succeeds and is thus allowed.
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SAN
The notification contained in Annexure P-3 stands quashed with a direction
Digitally signed by NAVEEN NAGDEVE
Date: 2022.04.07 16:41:09 IST
to the respondents to provide reservation in Nagar Parishad Nawrozabad, District
Umaria in accordance with law.
With the aforesaid, this petition stands allowed. No order as to costs.
(SHEEL NAGU) (MANINDER S BHATTI)
JUDGE JUDGE
navin
Signature Not Verified
SAN
Digitally signed by NAVEEN NAGDEVE
Date: 2022.04.07 16:41:09 IST
