IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 23180 of 2010(V) -------------------------- PETITIONER(S): --------------- P.S.BIJU, S/O. SAKTHIDHARAN, AGED 38 YEARS, PARAYIL HOUSE, PARAVOOTHAM, N.PARAVUR, ERNAKULAM DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.T.PRAVEEN RESPONDENT(S): --------------- 1. THE STATE ELECTION COMMISSION, PALAYAM, TRIVANDRU. PIN-695033. 2. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF-GOVERNMENT, TRIVANDRUM-1. 3. NORTH PARAVUR MUNICIPALITY REPRESENTED BY THE SECRETARY, NORTH PARAVUR, ERNAKULAM DIST. PIN-683513. R3 ADV. SRI.T.A.SHAJI,SC,PARAVUR MUNICIPALITY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 R2 BY G.P. SMT. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.23180 of 2010-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2010. JUDGMENT This writ petition is filed by the petitioner seeking for a declaration that the reservation of seats exceeding 50% of the total number of seats in Paravur Municipality is unconstitutional and illegal. 2. The petitioner is a resident within Paravur Municipality. The Municipality was having 26 wards in total, out of which 9 seats were reserved for women, 1 seat for SC/ST reservation and others and 16 seats were included in the general category. This was the position during the election conducted last time. As per the new notification, viz. Ext.P1, the total number of wards is 29, out of which 15 are reserved for women, one seat for SC/ST and the remaining 13 seats have been shown as general. Therefore, the petitioner contends that more than 50% of the total seats are earmarked for reservation, which is against the Constitutional scheme. 3. Heard learned Standing Counsel for the Election Commission and learned Govt. Pleader appearing for the State. 4. The matter is governed by Section 6 of the Kerala Municipality Act. Earlier, sub-section (6) of Section 6 provided that “not less than one- wpc 23180/2010 2 third of the total number of seats reserved under sub-section (5) shall be reserved for women belonging to the Scheduled Castes, or as the case may be, the Scheduled Tribes.” Sub-section (7) provided that “not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved by the Government for women and such seats may be allotted by rotation.” Sub- section (7) of Section 6 was amended by Act 30 of 2009 whereby, the words “not less than one-third” have been substituted by the words “fifty per cent”. 5. The issues raised in the writ petition are now squarely covered against the petitioner, in the light of the decision of the Supreme Court in Dr. K. Krishna Murthy v. Union of India (2010 STPL (Web) 378 SC). Therein, various issues have been considered by the Apex Court and it was held in para 37 as follows: “In the absence of explicit constitutional guidance as to the quantum of reservation in favour of backward classes in local self- government, the rule of thumb is that of proportionate reservation. However, we must lay stress on the fact that the upper ceiling of 50% (quantitative limitation) with respect to vertical reservations in favour of SC/ST/OBCs should not be breached. On the question of breaching this upper ceiling, the arguments made by the petitioners wpc 23180/2010 3 were a little misconceived since they had accounted for vertical reservations in favour of SC/ST/OBCs as well as horizontal reservations in favour of women to assert that the 50% ceiling had been breached in some of the States. This was clearly a misunderstanding of the position since the horizontal reservations in favour of women are meant to intersect with the vertical reservations in favour of SC/ST/OBC, since one-third of the seats reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category are not accounted for if one has to gauge whether the upper ceiling of 50% has been breached.” The same clearly answers the pleas raised by the petitioner herein. In para 39 of the above judgment also, their Lordships held that “in such circumstances, the vertical reservations in favour of SC/ST/OBCs cannot exceed the upper limit of 50% when taken together.” Of course, these principles were evolved in the matter of reservation to the post of Chairpersons, but the same principle will apply herein also. 6. Therefore, the principle that is laid down by the Apex Court in the above decision is that the principles prohibiting reservation above 50% which is envisaged in respect of reservations under Articles 5(4) and 16(4) of the Constitution of India, may not squarely apply to the reservations in Local Self Government Institutions. wpc 23180/2010 4 In that view of the matter, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/