Dipakkumar Dhanjibhai vs State of Gujarat

Ms. Harsha Devani, J. (Oral)—By this petition under article 226 of the Constitution of India, the petitioner has challenged the notification dated 13.07.2016 (Annexure "A" to the petition) whereby he has cancelled the earlier notification dated 03.03.2016 and issued a fresh notification allotting offices of Sarpanch of the village panchayats of Chikhli taluka and seeks a direction to the Collector not to allot any office of Sarpanch to the Scheduled Castes for the five village panchayats, viz., Chikhli, Chimla, Maliyadhara, Talavchora and Vankal of Chikhli Taluka, and further seeks a direction to the Collector to issue a fresh notification reserving the seats as stated in paragraph-17 of the petition.

It appears that subsequently, during the pendency of the petitioner, another notification dated 27.10.2016 (Annexure HH to the petition) came to be issued by the third respondent Collector whereby the office of Sarpanch for village Vankal came to be allotted to the Scheduled Castes and the offices of Sarpanch for the villages Chikhli, Chimla, Maliyadhara and Talavchora came to be allotted to the socially and educationally backward classes. Consequently, the petitioner moved an amendment and prayed for a further relief challenging the notification dated 27.10.2016 (Annexure "HH" to the petition) and seeking a direction to the respondent Collector not to reserve a seat for the Scheduled Castes for the elections for the office of Sarpanch of five village panchayats, viz., Chikhli, Chimla, Maliyadhara, Talavchora and Vankal of Chikhli Taluka and to issue a fresh notification reserving the seats as stated in paragraph-17 of the petition.

The facts stated briefly are that the petitioner is the present Sarpanch of Vankal village, whose term would expire in January, 2017. The present petition relates to five village panchayats, viz., Chikhli, Chimla, Maliyadhara, Talavchora and Vankal of Chikhli Taluka, Navsari District, where the population of non-tribals is more than 75% of the total population of the village panchayat.

Vide notification dated 08.05.1978, Chikhli Taluka came to be specified as a Scheduled area. The said taluka is comprised of in all 67 village panchayats. Out of the total 67 village panchayats, 62 village panchayats have more than 25% of tribal population and therefore, in view of the provisions of section 51(2)(a) of the Gujarat Panchayats (Amendment) Act, 1998 (hereinafter referred to as the "Amendment Act, 1998"), all the said offices of Sarpanch for the 62 village panchayats are reserved for the Scheduled Tribes. Clause (a) of sub-section (2) of section 51 of the Amendment Act, 1998, provides that all offices of Sarpanch of village panchayats in the State shall be reserved by the State Government for the Scheduled Tribes. Subsequently, a proviso came to be inserted in the above section, which provided that the provisions of clause (a) as amended by the Gujarat Panchayats (Amendment) Act, 1998 shall not apply to a village panchayat where the population of non-tribals is 75 (seventy-five) percent or more of the total population of the village panchayat. It is the case of the petitioner that insofar as the five villages, viz., Chikhli, Chimla, Maliyadhara, Talavchora and Vankal of Chikhli Taluka are concerned, the population of non-tribals as per the last preceding census of 2011 is more than 75% and therefore, the provisions of section 51(2)(a) of the Amendment Act, 1998 will not be applicable to these five village panchayats and in view of the proviso to clause (a) of sub-section (2) of section 51 of the Amendment Act, 1998, the provisions of section 51(2)(a) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the "Act of 1993") will be applicable. It is the further case of the petitioner that the third respondent - District Collector has issued a notification dated 03.03.2016 without considering the proviso to section 51(2)(a) of the Amendment Act, 1998 inasmuch as, in terms of the provisions of clause (a) of subsection (2) of section 51 of the Act of 1993, having regard to the population of the Scheduled Castes in taluka Chikhli in proportion to the total population of the taluka which is less that 0.5%, no office of Sarpanch can be reserved for the Scheduled Castes and that the office of Talavchora village panchayat is required to be reserved for the Scheduled Tribes from among the five offices of Sarpanch of the above referred village panchayats. According to the petitioner, the offices of Sarpanch of the above referred five village panchayats of Chikhli Taluka are required to be allotted as under :

"[a] No reserved seats for Scheduled Caste candidate.

[b] 62 reserved seat for Scheduled Tribes candidate is rightly done by the respondent - Collector in the impugned notification.

[c] 1 seat reserved for Scheduled Tribe candidate in Talavchora village and the same is required to be reserved for women candidate.

[d] 1 reserved seat for Socially and Educationally Backward Classes candidate for Chimla village and the same is required to be reserved for women candidate.

[e] 3 unreserved seats for General candidate."

Since the notification issued by the third respondent - District Collector, Navsari is not in consonance with the computation made by the petitioner for allotment of offices of Sarpanch for the above five village panchayats, the petitioner has approached this court seeking the reliefs noted herein above.

Mr. S.P. Majmudar, learned advocate for the petitioner, submitted that there are in all 67 village panchayats in Chikhli Taluka, out of which in 62 village panchayats, the population of non-tribals is less than 75% and hence, the offices of Sarpanch in those 62 villages have been reserved for the Scheduled Tribes. Consequently, the said 62 villages would be governed by the provisions of clause (a) of sub-section (2) of section 51 of the Amendment Act, 1998. However, the remaining five villages wherein population of the non-tribals is more than 75%, would be governed by the provisions of clause (a) of subsection (2) of section 51 of the Act of 1993. It was submitted that therefore, the allotment of offices of Sarpanch in the above five villages has to be made as per the unamended Act and by rotation. The attention of the court was invited to rule 4 of the Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch by Rotation) Rules, 1994 (hereinafter referred to as "the rules") and more particularly, sub-rule (2) thereof, which provides that the offices of Sarpanch of village panchayats shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of the offices of Sarpanch at village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayats in a taluka as the population of the Scheduled Castes or the Scheduled Tribes in the taluka bears to the total population of the taluka. It was submitted that sub-rule (2) of rule 4 of the rules has to be read to include only those seats which are available for rotation and therefore, the offices of Sarpanch reserved for the Scheduled Tribes by operation of the provisions of clause (a) of subsection (2) of section 51 of the Amendment Act, 1998 cannot be taken into consideration. It was submitted that if the computation of the offices of Sarpanch to be reserved for various categories is to be made in the manner in which the respondents have done, the same would make the provisions unworkable. It was submitted that the Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch by Rotation) Rules, 1994 do not apply to the modified provisions, viz., the provisions of clause (a) of sub-section (2) of section 51 as applicable to the Scheduled Areas and accordingly, do not apply only to the village panchayats which are governed by the special provisions. It was submitted that the 62 seats which are reserved for the Scheduled Tribes are governed by the modified provisions of the Panchayats as applicable to the Scheduled Areas and the provisions of the Act of 1993 cannot be applied to the same.

6.1. The attention of the court was invited to the contents of paragraph-1 of the memorandum of petition, wherein the reasons behind the arrangement of offices of Sarpanch set out in paragraph 17 have been set out, to submit that no office of Sarpanch is required to be reserved for the Scheduled Castes because the population of the above five village panchayats of Chikhli Taluka is 21,885. Out of the total population, only 454 persons belong to the Scheduled Castes. Thus, the population of the Scheduled Castes in the aforesaid five village panchayats of Chikhli Taluka is only 2.07%. Now if this 2.07% population of the Scheduled Castes is compared with the five village panchayats seats for Chikhli Taluka, the percentage would be 0.099% and therefore, the same would be less than 0.5% and hence, no office of Sarpanch can be reserved for the Scheduled Castes in the aforesaid five village panchayats of Chikhli Taluka. As to why one office of Sarpanch is required to be reserved for the Scheduled Tribes (Women) in Talavchora village, it was further submitted that out of the total population of 21,885 of the above five villages, 3875 persons belong to the Scheduled Tribes. Thus, the percentage of the Scheduled Tribes in the above five village panchayats is 17.70%. That if population of the Scheduled Tribes at 17.70% is compared with the five village panchayats of Chikhli Taluka, then the percentage would be 0.885% and therefore, the same being more than 0.5%, one office of Sarpanch is required to be reserved for the Scheduled Tribes in the aforesaid five village panchayats. It was submitted that since out of the above five villages the population of Scheduled Tribes if the highest is in Talavchora village panchayat, the office of Sarpanch for the said village is required to be reserved for the Scheduled Tribes (Women). As to why one office of Sarpanch is required to be reserved for the socially and educationally backward classes, it was submitted that in terms of the provisions of section 51(2) (a) of the Act of 1993, 10% of the total seats are required to be reserved for socially and educationally backward classes. In the present case, 10% of the total five seats is 0.5%. Thus, one office of Sarpanch is required to be reserved for the socially and educationally backward classes. It was submitted that the highest population of the socially and educationally backward classes is in Chimla village and therefore, the same is required to be reserved for the socially and educationally backward classes in the category of women as per the letter dated 03.08.2016 of the Deputy Secretary. It was, accordingly, urged that the computation for allocation of reserved seats made by the third respondent Collector being contrary to the provisions of the Gujarat Panchayats Act, 1993, and the rules framed thereunder as well as the provisions of the Amendment Act, 1998, deserves to be set aside and the respondent Collector is required to be directed to issue a fresh notification, as prayed for by the petitioner.

Vehemently opposing the petition, Ms. Manisha Lavkumar, learned Government Pleader, submitted that the order dated 13.07.2016 passed by the third respondent - Collector is in accordance with and in consonance with the statutory rules. It was submitted that Taluka Chikhli has to be considered as a unit and on the basis of the population of the taluka the number of offices of Sarpanch which are required to be reserved for different classes has to be determined and have to be allotted by rotation. It was submitted that Chikhli Taluka is situated in Navsari District and comprises of 67 Gram Panchayats and after following the procedure as prescribed under rules 4, 5, 6 and 7 of the rules, the office of Sarpanch of Village Vankal has been reserved for the Scheduled Castes. It was submitted that rule 4 of the rules prescribes the manner of reservation of offices of Sarpanch and such reservation is to be arranged in the following order of priority, viz., (a) the Scheduled Castes, (b) the Scheduled Tribes, and (c) the socially and educationally backward Classes where the minimum population is 5%. It was submitted that the ratio of the offices of Sarpanch reserved for the Scheduled Castes and the Scheduled Tribes, is mandated to be as near as may be in the same proportion to the total number of offices of the Sarpanch of the village panchayats in the taluka as the population of the Scheduled Castes and the Scheduled Tribes bears to the total population of the taluka. It was submitted that rules 5, 6 and 7 of the rules prescribe the procedure for allotment of reserved offices of Sarpanch for the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes. In terms of the prescription of the said rules, Taluka is to be considered as a unit. The total strength of the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes in the taluka is required to be determined. Based on this determination, a list of village panchayats is to be prepared ranging from the highest to the lowest population of the Scheduled Castes and the Scheduled Tribes in their Taluka. Each of these village panchayats would be assigned special numbers. Thus, different lists are required to be prepared in terms of the rules. The first is the list for all the village panchayats in the Taluka bearing General Serial Number, the second is the list of all the village panchayats arranged in descending order commencing with the highest percentage of population of the Scheduled Castes which have been assigned special numbers, and the third is the list of village panchayats assigned special numbers arranged in an hierarchical manner commencing with the village panchayat having the highest percentage of population of the Scheduled Tribes. It was submitted that insofar as the socially and educationally backward classes are concerned, the statutory rules prescribe that there shall be a 10% reservation for the socially and educationally backward classes in the allotment of reserved seats for Sarpanch provided for population of the socially and educationally backward classes in the taluka is more than 5%. This list which is the fourth list is required to be prepared alphabetically. It was submitted that insofar as the women are concerned, there shall be 50% horizontal reservation from 13.11.2014 and on these specially assigned serial numbers of the village panchayats for the Scheduled Castes, Scheduled Tribes and the socially and educationally backward classes continue to operate in rotation after very election till the entire list is exhausted. This is how the process of rotation in relation to the allotment of reserved offices of Sarpanch under the Panchayats Act operates. It was submitted that in the present case, the rules for reserving the offices of Sarpanch for the reserved categories are operated in the manner set out in paragraph 8 of the memorandum of petition which is as follows :

"Allotment of seats:

For Taluka Chikhli:

No. of Gram Panchayats -

67

Total population -

2,45,772

Total population of SC = 4886 as per census of 2011.

Total population of SC =

4886 =

1.99%

Total population of Taluka

- 2,45,772

1.99 x 67

100

=

199 x 67

10,000

= 1.33

Therefore, rounded to 1 seat.

(2) Total population of ST :

1,65,111

Total population of ST:

1,65,111 = 67.18%

(The said taluka is identified as a Scheduled Taluka in view of the population of the Scheduled Tribes.)

Total population of Taluka :

2,45,772

67.18 x 67

100

>

6718 x 67

10000

= 45.01

Therefore, rounded to 45 seats.

(3) For SEBC :

10% seats of total seats.

67 =

6.7

Therefore, rounded to 7 seats."

7.1. It was submitted that Chikhli Taluka is a Scheduled Area; 62 offices of Sarpanch out of 67 have been reserved for the Scheduled Tribes and only five villages where the population of the Scheduled Tribes is less than 25%, the statutory rules as prescribed under rules 4, 5, 6 and 7 of the rules, came to be followed and therefore, allotment of offices of Sarpanch for 2016 in Chikhli Taluka came to be made as under:

Scheduled Castes

1

Scheduled Tribes

62

S.E.B.C.

1

General

3

Total

67

7.2. It was submitted that subsequently, a new rectified notification dated 27.10.2016 came to be issued as there were mistakes in the previous notification dated 13.07.2016. It was submitted that as the Chikhli Taluka is a Scheduled Area and the population of the Scheduled Tribes was less than 25% only in five villages and previously only one office of Sarpanch was allotted to the socially and educationally backward classes. However, the authorities realized that the rules were not being followed in true spirit, and hence, the notification dated 27.10.2016 came to be issued, reserving four offices of Sarpanch for the socially and educationally backward classes out of the five offices of Sarpanch of the village panchayats in questions. It was submitted that after the office of Sarpanch came allotted to the Scheduled Castes in priority, considering the peculiarity of the situation and the Scheduled Area, as there are less number of village panchayats as compared to the offices of Sarpanch required to be reserved for the socially and educationally backward classes, the remaining offices of Sarpanch came to be allotted to the socially and educationally backward classes, leaving no seat for the General Category. It was submitted that therefore, fresh allotment of offices of Sarpanch for 2016 in Chikhli Taluka came to be made as per the notification dated 27.10.2016 as under:

Scheduled Castes

1

Scheduled Tribes

62

S.E.B.C.

4

General

-

Total

67

7.3. The attention of the court was invited to the provisions of Article 243(f) of the Constitution of India, which defines "population" to mean the population as ascertained at the last preceding census of which the relevant figures have been published. Reference was made to sub-section (33) of section 2 of the Act of 1993, which provides that the words "gram sabha", "panchayat area", "population" and "village" shall have the meanings respectively assigned to them in Part IX of the Constitution. Reference was made to the provisions of rules 3 to 10 of the rules to submit that the allotment of offices of Sarpanch by reservation in the five remaining village panchayats of Chikhli Taluka has been made in accordance with law and that the petition being devoid of merits, deserves to be dismissed.

In rejoinder, Mr. S.P. Majmudar, learned advocate for the petitioner, submitted that since Chikhli Taluka is notified under the provisions of the Panchayats (Extension of Scheduled Areas) Act, 1996 (hereinafter referred to as "the PESA Act"), the calculation given by the respondents is completely misconceived. It was submitted that insofar as 62 village panchayats of Chikhli Taluka are concerned, where the tribal population is not less than 25%, all the offices of Sarpanch have rightly been reserved for the Scheduled Tribes. It was submitted that those 62 village panchayats, therefore, cannot be counted for reservation by the respondents as section 51(2) (a) of the Amendment Act, 1998 applies to the same. However, insofar as the remaining five village panchayats are concerned, the provisions of section 51(2)(a) of the Act of 1993 would be applicable in view of the notification dated 23.11.2001. It was submitted that therefore, the calculation which is done as per the provisions of section 51(2)(a) of the Act of 1993 can be done only for the five village panchayats and therefore, these five village panchayats can only be treated as one unit and not the 67 village panchayats. It was submitted that insofar as the 62 village panchayats of Chikhli Taluka are concerned where the tribal population is not less than 25%, they are not available for reservation for classes other than the Scheduled Tribes, and therefore, the computation of offices of Sarpanch for allotment by rotation, as made by the respondents, is not in consonance with the legal provisions and that the impugned notifications are, therefore, required to be quashed and set aside.

Ms. Roopal Patel, learned advocate for the second respondent adopted the submissions advanced by the learned Government Pleader.

This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the record of the case as available before the court.

From the rival submissions advanced by the learned counsel for the respective parties, it is apparent that the controversy involved in the present case is as regards the manner in which the offices of Sarpanch are required to be allotted in the five village panchayats referred to herein above, where the population of non-tribals exceeds 25%. It is the case of the respondent authorities that the computation has to be made by considering the population of the entire taluka and while considering the proportion of population of the Scheduled Castes and the Scheduled Tribes and calculating the 10% seats that are required to be reserved for the socially and educationally backward classes, all the 67 offices of Sarpanch in Chikhli taluka are required to be taken into consideration. Whereas it is the case of the petitioner that while computing extent of reservation for the purpose of allotment of the offices of Sarpanch in the village panchayats, the population of the concerned village is required to be taken into consideration and the proportion of reservation is required to be computed by taking to consideration only the five village panchayats in question and that the 62 offices of Sarpanch which are reserved for the Scheduled Tribes by virtue of the operation of clause (a) of sub-section (2) of section 51 of the Amendment Act, 1998 are not required to be taken into consideration.

For the purpose of understanding the controversy in issue, it would be necessary to refer to the object behind introducing 100% reservation for the Scheduled Tribes in the villages having not less than 25% population of the Scheduled Tribes.

In the exercise of powers conferred by Para 6(1) of the Fifth Schedule to the Constitution of India, the President of India made an order known as the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977. By the said order Vansda, Dharampur, Chikhli, Pardi and Umbargam talukas of Valsad District were declared to be Scheduled Areas.

By the Constitution (Seventy-Third Amendment) Act, 1992, Part IX was inserted in the Constitution of India. Article 243-B of Part IX of the Constitution mandated that there shall be panchayats at the village, intermediate and district levels in accordance with the provisions of that Part. Article 243-C provides that the legislature of a State may, by law, make provisions with respect to the composition of panchayats. Detailed provisions were made under article 243-D enabling the reservation of seats for Scheduled Castes, Scheduled Tribes, women and Other Backward Classes. Article 243-M stated that:

"243-M. Part not to apply in certain areas.-(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244."

Based upon the recommendations of a Committee of Members of Parliament and experts under the chairmanship of Shri Dilip Singh Bhuria to undertake a detailed study to make recommendations about whether the Panchayati Raj System should be extended to the Scheduled Areas, as contemplated under article 243-M(4)(b) of the Constitution, the Panchayats (Extension of Scheduled Areas) Act, 1996 (hereinafter referred to as the PESA Act) was passed by the Parliament in 1996.

The Statement of Objects and Reasons of the PESA Act reads as follows :

"There have been persistent demands from prominent leaders of the Scheduled Areas for extending the provisions of Part IX of the Constitution to these Areas so that Panchayati Raj Institutions may be established there. Accordingly, it is proposed to introduce a Bill to provide for the extension of the provisions of Part IX of the Constitution to the Scheduled Areas with certain modifications providing that, among other things, the State legislations that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;.... The offices of the Chairpersons in the panchayats at all levels shall be reserved for the Scheduled Tribes; the reservations of seats at every panchayat for the Scheduled Tribes shall not be less than one-third of the total number of seats."

The provision of the PESA Act which merits consideration in the present case is section 4 which, as is relevant for the present purpose, reads as follows:

"4. Exceptions and modifications to Part IX of the Constitution. - Notwithstanding anything contained under Part IX of the Constitution, the legislature of a State shall not make any law under that Part which is inconsistent with any of the following features, namely:

(a).. to (f)

(g) the reservation of seats in the Scheduled Areas at every panchayat shall be in proportion to the population of the communities in that panchayat for whom reservation is sought to be given under Part IX of the Constitution:

Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats:

Provided further that all seats of Chairpersons of panchayats at all levels shall be reserved for the Scheduled Tribes;

(h)...to (o)."

To give effect to the provisions of the PESA Act, the State Legislature of Gujarat has passed the Gujarat Panchayats (Amendment) Act, 1998 introducing modifications subject to which the Gujarat Panchayats Act, 1993 would be applicable to the Scheduled Areas of the State. The relevant provisions of the Amendment Act read thus:

"(1) In section 2, after clause (19), the following clause shall be inserted, namely :-

"(19A) "Scheduled Areas" means the Scheduled Areas of the State as referred to in clause (I) of article 244 of the Constitution of India;"

(8) In section 51, in sub-section (2), -

(1) for clause (a), the following shall be substituted, namely,

"(a) All offices of Sarpanch of village panchayats in the State shall be reserved by the State Government for the Scheduled Tribes.

Explanation - For the purposes of this clause, "village panchayat" means the village panchayat, the whole local area of which comprises of the Scheduled Areas.""

Thus, by virtue of the amendment Act as applicable to Scheduled Areas, the State Government was required to reserve all the offices of Sarpanch in village panchayats in the State for the Scheduled Tribes. However, subsequently in the exercise of powers conferred by sub-paragraph (1) of Paragraph 5 of the Fifth Schedule to the Constitution of India, the Governor of Gujarat was pleased to direct that the Gujarat Panchayats Act, 1993 shall apply to the Scheduled Areas of the State subject to the certain exceptions and modifications as set out in the notification dated 23rd November, 2001. The exceptions and modifications to the extent they are relevant for the present purpose read thus:

"(2) In section 51, in sub-section (2), after clause (a), the following proviso shall be inserted namely: -

"Provided that the provisions of sub-clause (a) as amended by Gujarat Panchayats (Amendment) Act, 1998 shall not apply to a village panchayat where the population of non-tribals is 75 (Seventy five) percent or more of the total population of the village panchayat."

Thus, though the PESA Act provides for 100% reservation of offices of Sarpanch in village panchayats for the Scheduled Tribes, by virtue of the above modification, in case where the population of non-tribals is 75% or more of the total population of the village panchayat, the amended provisions of sub-clause (a) of section 51(2) as amended by the Amendment Act, 1998, have not been made applicable. Therefore, to the extent of those villages where by population of non-tribals is 75% or more of the total population, the allotment of offices of Sarpanch would be governed by the provisions of clause (a) of sub-section (2) of section 51 of the Gujarat Panchayats Act, 1993.

The question that next arises for consideration is as to how the offices of Sarpanch are required to be allotted to the areas governed by the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993 Clause (a) of sub-section (2) of section 51 of the Act of 1993 reads thus:

"51. (1) xxxx

(2)(a) The offices of Sarpanch of village panchayats in the State shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of offices of Sarpanch of village panchayats in the State so reserved shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayat in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State. There shall be reserved by the State Government for Socially and Educationally Backward Classes ten percent of the offices of Sarpanch of village panchayats in the State."

Thus, in terms of clause (a) of sub-section (2) of section 51 of the Act of 1993, (i) the offices of Sarpanch of village panchayats in the State are required to be reserved for the Scheduled Castes and the Scheduled Tribes; (ii) the number of offices of Sarpanch of village panchayats in the State so reserved should bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayats in the State as the population of the Scheduled Castes or the Scheduled Tribes in the State bears to the total population of the State; and (iii) 10% of the offices of Sarpanch of village panchayats in the State shall be reserved for the socially and educationally backward classes.

Sub-section (3) of section 51 of the Act of 1993 provides that the number of offices reserved under sub-section (2) shall be allotted by the State Government by rotation to different panchayats in the State in the prescribed manner. In the exercise of powers conferred by sub-section (5) of section 274, read with sub-section (3) of sec 51 of the Act of 1993, the Government of Gujarat has made rules called the Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch by Rotation) Rules, 1994.

In the present case, the number of offices of Sarpanch available for allotment under clause (a) of sub-section (2) of section 51(2)(a) of the Act of 1993 are five in number. The question that arises for consideration is as to how the five offices of Sarpanch are to be apportioned in consonance with the rules framed in this regard. Rule 3 thereof, provides for "Assignment of serial numbers to village panchayats of a taluka". Rule 4 provides for the "Manner of Reservation of Offices of Sarpanch" and reads thus:

"4. Manner of Reservation of Offices of Sarpanch.- (1) The reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes under clause (a) of section 51 of the Act shall be made in the manner specified hereafter.

(2) The offices of Sarpanch in village panchayats in a taluka shall be reserved by the State Government for scheduled castes and the scheduled tribes and the number of the offices of Sarpanch at village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion as the total number of offices of Sarpanch of village panchayats in a taluka as the population of the Scheduled Castes in the taluka or the Scheduled Tribes in the taluka to the total population of the taluka.

(3) The offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for socially and educationally backward classes and the number of offices of Sarpanch of village panchayats in a taluka as so reserved shall be ten percent of the total number of offices of Sarpanch of village panchayats in a taluka."

Thus, while section 51(2) (a) provides for reservation on the basis of the total population of the State, rule 4 provides for reservation on the basis of the total population of the taluka, which in effect and substance limits the reservation of offices of Sarpanch to areas where the Scheduled Castes and Scheduled Tribes have a larger presence. Be that as it may, that is not in issue in the present case.

Insofar as allotment of offices of Sarpanch by the impugned notification is concerned, the stand of the respondent State authorities is that since 62 offices of Sarpanch have already been reserved for the Scheduled Tribes, which exceeds the percentage of their population, no further offices are required to be allotted to them. The respondents, accordingly, after reserving the above 62 offices of Sarpanch for the Scheduled Tribes have worked out the number of offices of Sarpanch as would be available to the Scheduled Castes and the socially and educationally backward classes by considering the total number of seats available for rotation to be 67 and have come to the conclusion that one office of Sarpanch is required to be reserved for the Scheduled Castes and the remaining for the socially and educationally backward classes. By doing so, the respondents have jettisoned the very concept of allotment by rotation as envisaged under sub-section (3) of section 51 of the Act of 1993, inasmuch as, the consequence of working out the number of seats available to each category on the basis of 67 seats, is that all the five offices of village panchayats would perpetually remain reserved for the Scheduled Castes and the socially and educationally backward classes and no office of Sarpanch would ever be available for allotment to the general category by rotation, which is contrary to the rules prescribed in that regard. Besides, the exclusion of the Scheduled Tribes from allotment of the remaining offices of Sarpanch is against the very spirit of articles 243 and 243M of the Constitution of India, inasmuch as, in view of the provisions of the PESA Act and the Amendment Act of 1998, the seats reserved for the Scheduled Tribes in villages having less than 75% of non tribals fall within the ambit of section 51(2)(a) of the Amendment Act, 1998 and the remaining seats which fall under the general provisions of the Act of 1993. Therefore, if while allotting offices of Sarpanch for the remaining seats under the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993, the Schedule Tribes are taken out of consideration, the result is that the Schedule Tribes are deprived of the right to hold the office of Sarpanch in those village panchayats which are governed by the provisions of the Act of 1993, which cannot be the intention of the legislature, nor can such intention be discerned on a reading of the provisions of the Act of 1993 or the Amendment Act, 1998. In fact the village panchayats in question fall within a Scheduled Area and therefore, ordinarily, but for the proviso to clause (a) of sub-section (2) of section of the Amendment Act, 1998, all the offices of Sarpanch would have to be reserved for the Scheduled Castes. However, the proviso carves out an exception in case of villages where the population of non-tribals is 75% or more, in which case the ordinary provisions of the Act of 1993 would be applicable. The provisions of section 51(2)(a) of the Act of 1993 read with rule 4 of the rules, clearly provide for reservation of offices of Sarpanch of village panchayats in the taluka of the Scheduled Tribes in proportion to the total number of offices of Sarpanch of village panchayats in a taluka as the total population of Scheduled Castes bears to the total population of the taluka. Therefore, while carving out an exception to reservation of all the offices of Sarpanch in the taluka, it could not be the intention of the legislature or the rule making body to oust the Schedule Tribes from consideration in the village panchayats to which the provisions of the Amendment Act, 1998 would not apply. Therefore, while allotting of offices of Sarpanch by rotation under clause (a) of sub-section (2) of section 51 of the Act of 1993 read with rule 4 of the rules, the percentage of the Scheduled Tribes in the taluka is required to be taken into consideration and offices of Sarpanch even in the remaining five village panchayats are required to be allotted to the Scheduled Tribes in the same proportion to the total number of offices of Sarpanch of village panchayats in the taluka as the population of Scheduled Tribes bears to the total population of the taluka.

Apart from excluding the Scheduled Tribes from consideration while allotting offices of Sarpanch in the above referred five village panchayats, the respondents while considering the proportion of the Scheduled Castes and the percentage of the socially and educationally backward classes, have taken the number of offices of village panchayats in the taluka to be 67 and have worked out the total population of the Scheduled Castes in taluka to be 1.33% and have reserved one office of Sarpanch for the Scheduled Castes and have worked out 10% of the offices of Sarpanch to be reserved for the socially and educationally backward classes at 6.7 and have come to the conclusion that seven offices of Sarpanch are required to be reserved for them and have accordingly, allotted the remaining four offices of Sarpanch in the above five village panchayats to the socially and educationally backward classes. Thus, though only five offices of Sarpanch are available for allotment, as per the computation made by the respondents out of five, one office of Sarpanch is required to be reserved for the Scheduled Castes though their population is only 1.33% of the total population of the taluka and seven offices are required to be reserved out of five offices of Sarpanch to the socially and educationally backward classes, though they are required to be allotted only 10% of the offices of Sarpanch of the village panchayats (wherein the population of the socially and educationally backward classes is more than 5%) which on the face of it is absurd. Therefore, the manner in which the respondents have computed the allotment of offices of Sarpanch in the five village panchayats results into an absurdity, which is contrary to the legislative intention of reservation of offices of Sarpanch of the Scheduled Castes in proportion to the total number of offices of Sarpanch in the taluka (available for allotment under the Act of 1993) as the population of the Scheduled Castes bears to the total population of the taluka and reservation of 10% of the offices of Sarpanch for the socially and educationally backward classes. Moreover, the requirement of rotation of the offices of Sarpanch within all the classes is totally frustrated. Thus, if the provisions of the Act of 1993 read with the rules are construed in the manner put forth by the respondents, the same become unworkable.

In the opinion of this court, to make the provisions workable, the allotment of the remaining seats would be required to be made by considering the proportion of each class of persons in the context of the number of offices of Sarpanch of village panchayat available for allotment under clause (a) of sub-section (2) of section 51 of the Act of 1993 and not the total number of offices of Sarpanch of village panchayats in the taluka which include those reserved for Scheduled Tribes under section 51(2)(a) of the Amendment Act of 1998 and consequently are not available for allotment under the provisions of the Act of 1993. It is a settled rule of interpretation that if the language used is capable of bearing more than one construction and if a construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference should be given to such a construction that brings it into harmony with its purpose and avoids absurdity or anomaly as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended.

At this juncture, reference may be made to the provisions of the rules which govern the allotment of offices of Sarpanch under clause (a) of sub-section (2) of section 51 of the Act of 1993. Rule 4 of the rules provides for reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and Socially and Educationally Backward Classes under clause (a) of sub-section (2) of section 51 of the Act of 1993. Under sub-rule (2) of rule 4, reservation of the offices of Sarpanch of village panchayats in a taluka for the Scheduled Castes and the Scheduled Tribes is required to be made as nearly as may be in the same proportion to the total number of offices of Sarpanch of village panchayats in a taluka as the population of the Scheduled Castes in the taluka or the Scheduled Tribes in the taluka bears to the total population. Sub-rule (3) of rule 4 provides for reservation of ten percent of the offices of Sarpanch of village panchayats in a taluka for the Socially and Educationally Backward Classes. After the number of offices of Sarpanch in village panchayats of a taluka that are to be reserved for the Scheduled Castes under rule 4 is determined by the State Government, for the purpose of allotment of such offices of Sarpanch so reserved, the State Government is required to proceed further under rule 5 of the rules and prepare a list as contemplated under sub rule (1) of rule 5 of the rules. Similarly, after the number of offices of Sarpanch in village panchayats of a taluka which are required to be reserved for the Scheduled Tribes under rule 4 of the rules is determined by the State Government, for the purpose of allotment of the offices of Sarpanch so reserved, the State Government is required to proceed further under rule 6 of the rules and prepare a list as contemplated thereunder. The State Government is also required to reserve ten percent of the total number of offices of Sarpanch of village panchayats in a taluka for the socially and educationally backward classes. After reserving 10% of the offices of Sarpanch of the village panchayats in the taluka for the socially and educationally backward classes, the allotment of offices of Sarpanch is required to be made in accordance with the provisions of rule 7 of the rules.

After the offices of Sarpanch of village panchayats in a taluka reserved for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes are allotted, the remaining offices of Sarpanch are to be allotted in terms of rule 8 of the rules. Rules 5, 6, 7 and 8 also provide for preference to be given for allotment of offices of Sarpanch reserved for women. Rule 9 provides for computation of reserved offices of Sarpanch for women. Rule 10 provides for operation of lists of villages bearing special serial numbers and general serial numbers.

The core question that arises in the present case is as regards the interpretation of rule 4 of the rules. Sub-rule (1) of rule 4 provides for that reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes under clause (a) of sub-section (2) of section 51 of the Act shall be in the manner specified thereafter. The manner specified thereafter is under sub-rules (2) and (3) thereof. Sub rule (2) of rule provides that the offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of the offices of Sarpanch at the village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion to the total offices of Sarpanch of the village panchayats in a taluka as the population of the Scheduled Castes in the taluka or the Scheduled Tribes in the taluka bears to the total population of the taluka. Sub-rule (3) provides that the offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for the socially and educationally backward classes and the number of offices of sarpanch of village panchayats in a taluka as so reserved shall be ten percent of the total number of offices of sarpanch of village panchayats in a taluka. Since, both, sub rule (2) and sub-rule (3) of rule 4 of the rules speak of the total number of offices of Sarpanch of village panchayats in a taluka, the respondents on a literal meaning of the said rules contend that the reservation for the Scheduled Castes and the socially and educationally backward classes has to be computed on the basis of the total number of offices of Sarpanch of village panchayats in the taluka and not on the basis of the number of offices of Sarpanch available for allotment as contended by the petitioner.

In the aforesaid backdrop, the crucial question that requires to be addressed is as to what meaning should be assigned to the words "the total number of offices of Sarpanch of village panchayats in a taluka" in sub-rules (2) and (3) of rule 4 of the rules in relation to Scheduled Areas. In this regard, it is an admitted position that Chikhli taluka is a Scheduled Area governed by the provisions of article 243-M of the Constitution of India. Part IX of the Constitution makes provision for the Panchayats and is comprised of articles 243 to 243O. Article 243D provides for reservation of seats and postulates that the seats shall be reserved for - (a) the Scheduled Castes; and (b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. Article 243K of the Constitution makes provision for elections to the Panchayats. Article 243M bears the heading "Part not to apply to certain areas" and lays down that nothing in that Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2) of article 244. Sub-clause (b) of clause (4) of article 243M postulates that notwithstanding anything in the Constitution, Parliament may, by law, extend the provisions of that Part to the Schedule Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368. Viewed in the context of the above constitutional scheme, since Chikhli Taluka is a Scheduled Area, the provisions of the Gujarat Panchayats Act, 1993 would ordinarily not be applicable to it. However, by virtue of the PESA Act, the provisions of the Act of 1993 have been made applicable to the Scheduled Areas subject to the exceptions and modifications provided in the Gujarat Panchayats (Amendment) Act, 1998.

Accordingly, villages having not less than 25% population of the Scheduled Tribes are taken out of the purview of section 51(2) (a) of the Act of 1993 and are governed by the provisions of section 51(2)(a) as substituted by the Amendment Act, 1998. Accordingly, in villages having more not less than 25% population of the Scheduled Tribes, all the offices of Sarpanch are required to be reserved for the Scheduled Tribes, whereas the remainder of the villages wherein the population of non-tribals is 75% or more would be governed by the provisions of section clause (a) of sub-section (2) of section 51 of the Act of 1993 and the offices of Sarpanch of such villages would have to be reserved in accordance with the rules. Therefore, while the total number of offices of Sarpanch in Chikhli taluka are 67 in number, the total number of offices of Sarpanch available for allotment under clause (a) of sub-section (2) of section 51 of the Act of 1993 read with the rules is only of five village panchayats. If one considers the total number of offices of Sarpanch of village panchayats in the taluka for the purpose of allotment, then an absurd situation as mentioned herein above arises. Therefore, such construction of the provisions of the Act of 1993 read with the rules cannot be adopted and a purposive construction would have to be employed which advances the object behind the statutory provisions. Accordingly, the words "total number of offices of Sarpanch of village panchayats in a taluka" employed in rule 4 of the rules would have to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as available for allotment under rule 4 of the rules. Since the offices of Sarpanch of village panchayats of a taluka in a Schedule Area are available for allotment only after reserving offices of Sarpanch for the Scheduled Tribes in those village panchayats where the population of non-tribals is less than 75%, viz., such village panchayats which are governed by the provisions of clause (a) of sub-section (2) of the section 51 of the Amendment Act, 1998, it is only such offices of Sarpanch which are available for allotment under the provisions of the Act of 1993 and the rules framed thereunder, that would form the total number of offices of Sarpanch of village panchayats as contemplated in rule 4 of the rules. The expression "the total number of offices of Sarpanch of village panchayats in a taluka", accordingly, has to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as are governed by the provisions of the Act of 1993 and the rules framed thereunder and are, accordingly, available for allotment thereunder.

As noted herein above, the total number of offices of Sarpanch in Chikhli taluka is 67, out of which 62 are governed by section 51(2)(a) of the Amendment Act, 1998 and only 5 villages are governed by the provisions of section 51(2)(a) of the Act of 1993. While computing the offices of Sarpanch to be reserved for these 5 villages, the respondents have taken into consideration the total number of offices of Sarpanch in the taluka and not just the offices of Sarpanch available for allotment under section 51(2)(a) of the Act of 1993. Moreover, the respondents have also taken into consideration the offices of Sarpanch in village panchayats where the population of the Scheduled Tribes is not less than 25% for the purpose of computing the offices of Sarpanch as are required to be reserved for the Scheduled Tribes. Therefore, taking into consideration the fact that the population of the Scheduled Tribes in the taluka is 67.18% as well as the fact that more than 67.18% of offices of Sarpanch in Chikhli Taluka have been reserved for the Scheduled Tribes, the respondents have not made any reservation for the Scheduled Tribes insofar as the offices of Sarpanch of the five village panchayats in question are concerned. The respondents, for the purpose of allotment of offices of Sarpanch of Chikhli taluka, have adopted the following approach:

Scheduled Castes

1

Scheduled Tribes

62

S.E.B.C.

1

General

3

Total

67

In the opinion of this court, the manner in which the allotment has been made by the respondents militates against the very spirit of articles 244 and 243M of the Constitution of India which are beneficial provisions made for the Scheduled Tribes. As noticed earlier, the provisions of PESA provide for reservation of all the offices of Sarpanch in the taluka for the Scheduled Tribes. However, by virtue of the proviso to section 51(2)(a) of the Amendment Act of 1998 as applicable to the Scheduled Areas, offices of Sarpanch where the population of non-tribals is 75% or more have been taken out of the purview of the said section and are governed by the provisions of section 51(2)(a) of the Act of 1993. On a bare reading of the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993, there is nothing therein from which one could infer an intention to exclude the Scheduled Tribes from the benefit of reservation thereunder to the extent they have been granted the benefit of reservation under the provisions of section 51(2)(a) of the Amendment Act of 1998. The action of the respondents in denying reservation to the Scheduled Tribes in accordance with the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993 and the rules framed thereunder, is violative thereof and cannot be sustained.

As noticed earlier, after reservation of sixty two offices of Sarpanch for the Scheduled Tribes, the remaining five offices are available for allotment under the provisions of clause (a) of sub-section (2) of section 51 of the Act of 1993. Insofar as the allotment of offices of Sarpanch for the five village panchayats is concerned, the reservation of sixty two offices of Sarpanch for the Scheduled Tribes under section 51(2)(a) of the Amendment Act, 1998 are taken out of the ambit of consideration, and therefore, the allotment of offices of Sarpanch for the five village panchayats has to be made by considering the total number of offices of Sarpanch in the taluka as five and not sixty seven.

The manner of reservation of offices of Sarpanch for the five village panchayats of Chikhli taluka available for allotment under the provisions of the Act of 1993 is required to be made in accordance the rules. In terms of sub-rule (2) of rule 4 of the rules, the offices of Sarpanch of village panchayats in a taluka shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of offices of Sarpanch of village panchayats in a taluka reserved for the Scheduled Castes and the Scheduled Tribes shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayats in a taluka as the population of the Scheduled Tribes in the taluka or the Scheduled Tribes in the taluka bears to the total population of the taluka. As held herein above, the expression "the total number of offices of Sarpanch of village panchayats in a taluka", has to be construed to mean the total number of offices of Sarpanch of village panchayats in a taluka as are governed by the provisions of the Act of 1993 and the rules framed thereunder and are, accordingly, available for allotment thereunder Therefore, sub-rule (2) of rule 4 of the rules shall have to be applied as if the total number of offices of Sarpanch of the village panchayats in the taluka are five. If that be so, the computation of reservation for the different categories shall be as under :

"The Scheduled Castes

The total population of Scheduled Castes is 4886 as per census of 2011.

The total population of the taluka is 2,45,772.

The proportion of Scheduled Castes in the taluka is 1.99% = 0.0995 seats out of 5 seats."

At this juncture, reference may be made to rule 13 of the rules, which provides for computation of offices of Sarpanch reserved under the rules and lays down that while deriving the number of offices of Sarpanch to be reserved under the rules, a fraction which is one half or greater than one half in value shall be counted as one and a fraction less than one half in value shall be ignored. Therefore, 0.0995 being less than one half in value, shall be ignored and accordingly, no office of Sarpanch would be available for reservation for the Scheduled Castes. On behalf of the respondents, reliance has been placed upon an unreported decision of this court in the case of Nathabhai Devabhai Zala v. State of Gujarat rendered on 16.12.2011 in Special Civil Application No.17901 of 2011, wherein the court held that the mandate under sub-section (5)(a)(i) of section (9) of the Act of 1993 is that one seat in every village panchayat has to be reserved for the Scheduled Castes/the Scheduled Tribes, to contend that it is mandatory for the State Government to reserve at least one seat for the Scheduled Tribes in view of the principles propounded in the above decision. This court is of the considered view that the above decision which has been rendered in the context of the provisions of section 9 of the Act of 1993 which relate to the constitution of village panchayats and inter alia make provision for reservation of seats of members of the panchayat for the Scheduled Castes and Scheduled Tribes, would have no applicability to the facts of the present case which relates to offices of Sarpanch in village panchayats and not to seats of members of the village panchayat. The said decision therefore, would not come to the aid of the respondents.

The Scheduled Tribes :

The total population of the Scheduled Tribes is 1,65,111 as per census of 2011.

The total population of the taluka is 2,45,772.

Therefore, the population of the Scheduled Tribes is 67.18%, which is equal to 3.359 seats out of 5 seats.

Accordingly, 3 seats would be required to be reserved for the Scheduled Tribes.

The allotment of the three offices of Sarpanch reserved for the Scheduled Tribes would have to be made in the manner provided in rule 6 of the rules read with rules 9 to 11 of the rules.

The Socially And Educationally Backward Classes : In terms of sub-rule (3) of rule 4 of the rules, 10% of the total number of offices of Sarpanch of the village panchayats of a taluka have to be reserved for the socially and educationally backward classes. The offices of Sarpanch so reserved for the Socially and Educationally Backward Classes would thereafter be required to be filled up in terms of rule 7 of the rules.

Having regard to the fact that the total number of offices of Sarpanch of the village panchayats in the taluka is 5, 10% thereof would come to 0.5. Since a fraction of one half is to be considered as one, one office of Sarpanch would be required to be reserved for the socially and educationally backward classes.

Thus, after reserving three offices of Sarpanch for the Scheduled Tribes and one for the socially and educationally backward classes, one office of Sarpanch would remain for allotment to the General Category. The five offices of Sarpanch in the village panchayats of Chikhli, Chimla, Maliyadhara, Talavchora and Vankal are required to be allotted as follows: three offices of Sarpanch to the Scheduled Tribes; one office of Sarpanch to the socially and educationally backward classes; and one office of Sarpanch to the General category in accordance with rules 6 to 10 of the rules. As to whether a particular office of Sarpanch is required to be reserved for women, would have to be worked out in terms of rule 6 to 10 of the rules.

In the light of above discussion, the reservation of offices of Sarpanch in village panchayats in Scheduled Areas to which the provisions of the Panchayats Act, 1993 apply, shall have to be computed as referred to herein above. The impugned notification issued by the Collector, which allots offices of Sarpanch in a manner which is inconsistent with the provisions of the Act of 1993 and the rules framed thereunder, cannot be sustained. For the reasons recorded herein above, the computation put forth by the petitioner in paragraph-17 of the petition is also not in consonance with the provisions of rule 4 of the rules and hence cannot be accepted. However, the petitioner would still succeed in his challenge to the notification dated 27.10.2016.

For the foregoing reasons, the petition partly succeeds and is, accordingly, allowed to the aforesaid extent. The impugned notification dated 27.10.2016 is hereby quashed and set aside and the third respondent - Collector, Navsari is directed to issue a fresh notification in terms of what is discussed herein above. Rule is made absolute accordingly, with no order as to costs.