State of Goa & Anr. vs Fouziya Imtiaz Shaikh & Anr.

04.02.21 – On 22.2.2021, Notification was issued out at 9.00 am and presented to the Goa Bench, by which elections to the 11 Municipal Councils commenced – Thereafter, on 04.03.21, Notification issued by the SEC altering the original schedule of elections – High Court quashed the order dated 04.02.21 and issued direction to the Director to issue Notification within period of 10 days; and to SEC to notify election programme – Interference with – Held: Not called for – High Court rightly ignored the constitutional bar in arriving at the conclusion that the 04.02.2021 order is illegal and ultra vires the provisions of Art. 243T r/w ss. 9 and 10 of the Act – SEC is not an independent body as is mandated by Art.243K but is a Law Secretary to the Government of Goa – Thus, the whole process of these elections was faulted at the start – SEC had itself postponed the municipal elections twice due to the COVID-19 pandemic – On facts, due application of mind could not have been bestowed before issuing the order dated 4.2.21 – When the High Court issued notice on 15.02.2021 for final hearing on 22.02.2021, the SEC did not inform the High Court that vide a note of 05.02.2021, elections were proposed to be held on 20.03.2021 – Furthermore, in a clear attempt to overreach the High Court, SEC issued an election notification at 9:00 a.m. on 22.02.2021, even before the Government offices open at 9:30 a.m. in order to forestall the hearing of the writ petitions filed before the High Court – On 04.03.2021, SEC had rescheduled the election – Goa Municipalities Act, 1968 – ss. 9, 10 and 22 – Elections.

Art. 243ZA(1) – Election to Municipalities – Powers exercised by the State Election Commission (SEC) under Art. 243ZA(1) – Held: The entire supervision and conduct of elections to municipalities is vested in a constitutional authority-SEC – SEC gives orders and directions to the State Government as well as authorities that are set up under State statutes for supervision and conduct of elections – SEC also fills in gap where there is no law or rule governing a particular situation during the conduct of an election – SEC being an independent constitutional functionary is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court u/Arts. 226 and 227 to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf. Arts. 243ZG(a)/329(a) – Bar to interference by Court in electoral matters – Delimitation and allocation of seats – Held: Bar contained in Art. 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Art. 329(a) – Constitutional bar of Art. 243ZG(a) applies only to courts and not the State Election Commission.

Arts. 243ZG(a), 243ZA – Municipal elections – Consecptus of – Held: Under Art. 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal – From the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated debarring the writ court u/Arts. 226 and 227 from interfering once the election process has begun until it is over – Constitutional bar operates only during this period – Thus, discretion is exercised by the writ court as to whether an interference is called for when the electoral process is “imminent”- notification for elections is yet to be announced – However, if the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders – Furthermore, Art. 243ZG does not operate as a bar after the election tribunal decides an election dispute before it – Thus, the jurisdiction of the High Courts u/Art. 226 and 227 and that of the Supreme Court u/Art.

136 is not affected – Under Art. 243ZA(1), if there is a constitutional or statutory infraction by any authority either before or during the election process, SEC can set right such infraction – SEC can direct the State Government or other authority to follow the Constitution or legislative enactment – It can also approach a writ court to issue necessary directions in this behalf – Judicial review of a State Election Commission’s order is also available on grounds of review of administrative orders.

Disposing of the appeals and allowing the writ petition, the Court

HELD: 1.1 The constitutional bar contained in Article 243ZG(a) does not apply to the facts of this case. [Para 64][845-H]

Anugrah Narain Singh v. State of U.P. (1996) 6 SCC

303 : [1996] 5 Suppl. SCR 719 – relied on.

1.2 This Court is constrained not to interfere with the impugned judgment under Article 136 of the Constitution of India. This is because of the following special features of the facts of these cases:

(i) First and foremost, the State Election Commissioner is none other than the Law Secretary to the Government of Goa. The whole process of these elections is, therefore, faulted at the start so to speak as the SEC is not, in the facts of these cases, an independent body as is mandated by Article 243K.

(ii) The SEC had itself postponed the municipal elections twice due to the COVID-19 pandemic raging throughout the State. On the second occasion, by the notification dated 14.01.2021, the SEC had itself postponed these elections till April 2021 or the election date which may be determined by the State Election Commission. Obviously, the expression “or the election date which may be determined by the Commission” would indicate a date beyond April, 2021, given the situation in which the State of Goa finds itself due to the COVID-19 pandemic. It is important to note that the High Court in its direction contained in paragraph 81(e) directs the SEC to act in accordance with this notification so that elections are held by 15.04.2021.

(iii) In Dnyaneshwar Narso Naik’s case and Sujay S. Lotlikar’s case, solemn assurances were made by the Advocate General that orders of reservation in wards of Municipal Councils will be made at least three weeks before the election programme is announced. The State Government instead of acting upon these statements, inserted an amendment by adding a proviso to Section

10 of the Goa Municipalities Act in which a lesser period was mentioned i.e., a period of at least one week.

(iv) The Law Secretary’s letter dated 05.02.2021, calling upon the Director, Urban Development, to issue a reservation order under Section 10 of the Goa Municipalities Act was to do so “at an early date”. The Director, by an order passed one day before this communication i.e., on 04.02.2021, with lightning speed provided for reservation in all 11 Municipal Councils of women/SCs/STs and OBCs prompting the High Court to observe that due application of mind could not have been bestowed before issuing such an order.

(v) All the writ petitions in the instant cases were filed between 9th and 12th February, 2021 immediately challenging the Director’s order dated 04.02.2021. None of these writ petitions contained a prayer that would hold up any election programme. The only prayer was to strike down the said order so that the Director in issuing a fresh order would have to truly and faithfully carry out the constitutional mandate of Article 243T of the Constitution of India and the statutory mandate contained in Section 9 of the Goa Municipalities Act.

(vi) When the High Court issued notice on 15.02.2021 for final hearing on 22.02.2021, the SEC did not inform the High Court that vide a note of 05.02.2021 (disclosed for the first time by an affidavit filed in this Court on 08.03.2021), elections were proposed to be held on 20.03.2021.

(vii) In a clear attempt to overreach the High Court, the State Election Commissioner, who is none other than the Law Secretary of the State of Goa, issued an election notification at 9:00 a.m. on 22.02.2021, even before the Government offices opened at 9:30 a.m. in order to forestall the hearing of the writ petitions filed before the High Court, which commences hearing the writ petitions at 9.00 a.m.

(viii) After the judgment was pronounced by the Division Bench of the High Court on 01.03.2021 and no stay granted, this court, “issued notice” on 04.03.2021 and stayed the impugned judgment, the effect of which was to revive the election programme that was notified on 22.02.2021. Despite this, the State Election Commission, on this very day i.e., 04.03.2021, amended the aforesaid notification by extending the time period for filing of nomination for 5 Municipal Councils from 04.03.2021 till 06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore, rescheduled the election. [Para 66][846-F-H; 847-A-H; 848-A-E]

2.1 The scheme contained in Part XV is bodily lifted into the provisions contained in Part IX-A, the powers exercised by the State Election Commission-SEC under Article 243ZA(1) are the same as those vested in the Election Commission of India under Article 324 of the Constitution of India. The entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections. The power thus,conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election. The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf. [Para 52][832-C-F]

Mohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405 : [1978] 2 SCR 272-relied on.

2.2 So far as delimitation and allocation of seats is concerned, the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Article 329(a) of the Constitution. [Para 53][832-G-H]

Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985)

4 SCC 689 : [1985] 1 Suppl. SCR 493; Indrajit Barua v. Election Commission of India (1985) 4 SCC

722: [1985] 3 Suppl. SCR 225; Meghraj Kothari v. Delimitation Commission, [1967] 1 SCR 400; Assn. of Residents of Mhow (ROM) v. Delimitation Commission of India (2009) 5 SCC 404 : [2009] 5 SCR 384; Rampakavi Rayappa Belagali v. B.D. Jatti (1970) 3 SCC 147: [1971] 2 SCR 611; State of U.P. v. Pradhan Sangh Kshettra Samiti 1995 Supp (2) SCC 305: [1995]

2 SCR 1015; Anugrah Narain Singh v. State of U.P. (1996) 6 SCC 303: [1996] 5 Suppl. SCR 719;

Dravida Munnetra Kazhagam v. State of T.N.(2020) 6 SCC 548 – referred to

2.3 A conspectus of the judgments in the context of municipal elections would yield the following results.

I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles

226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.

II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the nonobstante clause in Article 243ZG operates only during the process of election.

IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

V. Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.

VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats. VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.

VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.

IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.

X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition. [Para 63][843-E-H; 844-A-H; 845-A-G]

Election Commission of India v. Ashok Kumar (2000)

8 SCC 216 : [2000] 3 Suppl. SCR 34 – referred to.

2.4 No fault can be found with the Division Bench of the High Court in ignoring any constitutional bar in arriving at the conclusion that the 04.02.2021 order is illegal and ultra vires the provisions of Article 243T of the Constitution of India read with Sections 9 and 10 of the Goa Municipalities Act. There was no submission that the reservation of seats for women and OBCs was in accord with the provisions of the Constitution and the Goa Municipalities Act. Indeed, even otherwise, there was no fault with the Division Bench judgment in its conclusion that a fraction has to be worked upwards whatever that fraction be, given the mandatory language of Article 243T of the Constitution which provides for reservation for women which shall not be less than one-third. Also, the findings of the High Court on OBC reservation not complying with the mandate of Section 9(2)(bb) in that in several councils it was below 27% cannot be faulted. The same goes for observations made on the 1 ST seat in Sanguem and non-application of the principle of rotation. The Solicitor General was right in stating that the assurances given by the Advocate General that the State Government would not raise the bar of Article 243ZG(b), but would instead argue that since the election programme was “imminent” and that thus, the High Court ought not intervene, cannot alter the position in law. There can be no doubt that no concession by counsel can operate against a constitutional bar. [Para 64, 65][846-B-F]

2.5 The order of the High Court will be observed with two changes. In paragraph 81(c), it is clarified that the period of 10 days in which the Director, Urban Development is to issue a fresh order will be 10 days from the date of this judgment. Also, instead of “15th April” occurring in paragraph 81(e), the words “30th April” be substituted. All the other directions will remain undisturbed. [Para 67][849-A-B]

2.6 The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, a mockery of the constitutional mandate. Therefore, it is declared that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future. [Para 68][849-B-H]

Writ Petition (Civil) No. 309/2021

3. The instant Writ Petition (Civil) No. 309/2021 has been filed under Article 32 of the Constitution of India by a resident of Margao, Goa, challenging the reservation order dated 04.02.2021 issued by the Director of Municipal Administration, Goa, and the notification dated 04.03.2021 which was issued by the Goa SEC altering the original schedule of elections. In view of the fact that the reservation order dated 04.02.2021 has been set aside and that a fresh election schedule will have to be notified, the writ petition is allowed and the notification dated 04.03.2021 is also struck down. [Para 69][850-A-C]

N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [1952] SCR 218; Durga Shankar Mehta v. Thakur Raghuraj Singh [1955] 1 SCR 267; Hari Vishnu Kamath v. Syed Ahmad Ishaque [1955] 1 SCR 1104; Narayan Bhaskar Khare (Dr) v. Election

Commission of India [1957] SCR 1081; Kishansing Tomar v. Municipal Corpn., Ahmedabad (2006) 8 SCC

352 : [2006] 7 Suppl. SCR 454; W.B. State Election Commission v. Communist Party of India (Marxist) (2018) 18 SCC 141 : [2018] SCR 100; Dravida

Munnetra Kazhagam v. State of T.N.(2020) 6 SCC 548; Laxmibai v. Collector (2020) 12 SCC 186; Election Commission of India v. Shivaji (1988) 1 SCC 277 : [1988] 1 SCR 878; Bendict Denis Kinny v. Tulip Brian Miranda & Ors. (2020) SCC Online 802; Boddula Krishnaiah and Another v. State Election Commissioner, A.P. & Ors. (1996) 3 SCC 416 : [1996] 3 SCR 687; Kurapati Maria Das v. Dr. Ambedkar Seva Samajan, (2009) 7 SCC 387 : [2009] 6 SCR 498; Digvijay Mote v. Union of India, (1993) 4 SCC 175: [1993]

1 Suppl. SCR 553; Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors (2010) 9 SCC 437: [2010]

10 SCR 971 – referred to.