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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).

09. To describe in brief, the petitioners, Union Government on one side have come with a case that the provisions of PESA are not being implemented, sofar as elections of Zilla Parishads and Panchayat Samitis in revenue districts of Dhule and Nandurbar are concerned, in spite of the fact that, a considerable part of both Zilla Parishads is declared to be Scheduled Area, by the President of India, by the Scheduled Area (Maharashtra) Order, 1985. Although Election Commission has taken a role of an observer, by conceding that it shall implement the directions those may be issued by this Court, State and intervenors have opposed the Petition, by contending that the provisions of PESA are being given effect within the State and more particularly, for the purpose of elections to Zilla Parishads and Panchayat Samitis ig in revenue districts of Dhule and Nandurbar, where there exists Scheduled Area in the territorial limits of each Zilla Parishad. Naturally, the first task before us is to find out whether provisions of PESA are being given effect to, at the elections of the Panchayats within the State of Maharashtra and the area declared as Scheduled Area by the President, may be by amendment to ZPPS Act and, therefore, it is necessary to compare the relevant provisions from the two legislations, as also 1996 Rules enacted by the State, also for the same purpose.

. However, State Government by two proviso, has categorised the Panchayats into two categories (1) where entire Panchayat area is scheduled area and (2) where Panchayat area is only partially scheduled area. The second proviso was under strong exception by the petitioners as also the Union. It lays down that where entire area of the Panchayat is not a declared Scheduled area, or where only part of the territory of Panchayat is Scheduled area, reservation of seats shall be as per clause (b) i.e. as per population ratio and clause (b) does not make any provision for "not less than one half of the total number of seats as reservation for Scheduled Tribes". The second proviso, therefore, must be said to be in conflict with first proviso to Section 4(g) of PESA. State legislation has created similar distinction as regards reservation of offices of the Chairpersons for the purpose of Panchayats having entire area declared as scheduled area and Panchayats wherein only part of the area is declared scheduled area. On reference to Sections 42 and 67 of the ZPPS Act, as modified by amendment dated 3.1.1997, proviso to Section 42(4)(a) relating to President and Vice President of Zilla Parishad and proviso to Section 67(5)(a) relating to Chairman of Panchayat Samiti are also identically worded and those can be reproduced hereinbelow in a combined form;

. It, therefore, appears desirable that there is dialogue between State and the Union to resolve this discrepancy. After all the Courts cannot direct either Government to legislate in a particular manner.

. In para 3 of reply filed by Shri Rajiv Pande on behalf of State Election Commission, it is contended that State Election Commission is not responsible for implementing provisions of PESA. We are afraid once Part IX is made applicable also to the Scheduled Areas, with exceptions and modifications, by PESA, such an approach is not permissible to the State Election Commission in view of Article 243-K(1), which vests the superintendence, direction and control of the preparation of electoral roll for, and on the conduct of all elections to the Panchayats in State Election Commission. The provision of PESA to the extent applicable to the elections of Panchayats are required to be implemented by the Election Commission in the field.