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Showing contexts for: PESA in Vikramsing S/O Jalamsing Walvi vs The State Of Maharashtra on 31 October, 2008Matching Fragments
declared as Scheduled Area, as referred to in clause (1) of Article 244 of the Constitution, there cannot be rotation of seats in the Scheduled Area (as contemplated by Article 243-D(1)), as PESA clearly indicates reservation for Scheduled Tribes in the Scheduled Area.
On 2.12.1985, Presidential Order about the Scheduled Areas (Maharashtra) is published, declaring certain areas of Dhule and Nandurbar Districts to be Scheduled Areas under paragraph 6 of the Fifth Schedule of the Constitution. The State Election Commission and other authorities of the State are, therefore, required to reserve seats in the Scheduled Area for the forthcoming elections for Zilla Parishad and Panchayat Samitis in accordance with provisions of PESA. The Petitioners, by representations to the Honourable the Chief Minister, as also the State Election Commission, requested to implement the provisions of PESA (reservation in accordance with provisions of PESA), at the ensuing Zilla Parishad and Panchayat Samiti Elections. (As informed by Advocate Shri S.T.Shelke for the State Election Commission, the election programme is likely to be declared on 10.11.2008, polling is proposed to be scheduled on 30.11.2008 and counting on 2.12.2008. This is because, the term of existing Zilla Parishad and Panchayat Samiti ends sometime between 20th and 30th December 2008.) According to the Petitioners, PESA is enacted with the aim and object that the administration and control of Scheduled Areas shall be in the hands of Scheduled Tribes.
According to Petitioners, Respondents-authorities are neglecting the provisions of PESA and amended provisions of ZPPS Act, are likely to create chaos due to conflict between Central legislation (PESA) and State legislation (ZPPS Act). According to the petitioners, PESA is a legislation with superior efficacy and it must prevail over ZPPS Act, to the extent provisions of the said State Act are not in harmony with PESA. For the purpose of pleading that so far as governance of Scheduled Area through Panchayats is concerned, no other enactment, much less a State legislation will be applicable, reliance is placed upon the speech of the Hon'ble Minister of Rural Areas and Employment (Shri Yerran Naidu), at the time of introduction of the bill to provide for extension of provisions of Part IX to the Scheduled Areas (PESA). (Exh. F).
24.12.1996. PESA came into force.
03.01.1997. Amendment to ZPPS Act (Sections 12(2)(b) and 58 (1-B)(b) came into force, initially by way of Ordinance I of 1997 and then by amendment to the Act.
. It was submitted that in view of Article 243-M read with Article 244(1) and Fifth Schedule, Part IX of the Constitution would not apply to the Areas declared as Scheduled Area, by Presidential order of 1985 (Exh.B). The Central legislation (PESA) is the only legislation that can govern the Scheduled Area for the purpose of Panchayati Raj and reservation ought to be in accordance with Section 4(g) of PESA. The Election Commission, according to learned Senior Counsel Shri Shah, seems to plead that it follows 1996 Rules, due to judgment in Writ Petition No.5386 fo 2006, delivered by this Court on 3.10.2006. But, rule 4(2) of the Maharashtra Z.P and P.S. (amendment and rotation of reservation of seats) Rules 1996 (henceforth referred to as "the 1996 Rules" for brevity's sake), is in conflict with Section 4(g) of PESA, since the said rule restricts only one reservation per block, by rotation, whereas PESA neither recommends rotation nor reservation of only one seat per block, which may cause at times, only 50 per cent seats for S.T., although population of ST is more than 50 per cent as compared to total population of the block.
06. While opposing the petition, it was contended by Shri Umakant Patil, learned A.G.P. that Article 243-D provides rotation which is not provided by PESA. PESA is silent on the aspect and, therefore, Sections 12(2)(b) and 58 (1-B)(b) of the ZPPS Act to the extent those provisions prescribe rotation, do not conflict either with the Constitution or PESA. According to leaned A.G.P., the amendments to those Sections are, therefore, in harmony with Article 243-D and PESA. It was impliedly submitted that, if the second proviso to Sections 12(2)(b) and 58 (1-B)(b), which are taken exception to by the learned Senior counsel for the Petitioners, are to be ignored, then it will be treating the entire Zilla Parishad or Panchayat Samiti as the Scheduled Area, as soon as the President declares some portions as Scheduled Area.