REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL ORIGINAL JURISDICTION

CIVIL APPEAL NO. 881 OF 2021

(@ SLP (CIVIL) NO.3937 OF 2021)

STATE OF GOA & ANR. …APPELLANTS

VERSUS

FOUZIYA IMTIAZ SHAIKH & ANR. …RESPONDENTS

WITH

CIVIL APPEAL NO. 882 OF 2021

(@ SLP(C) NO. 4131/2021)

CIVIL APPEAL NO. 883 OF 2021

(@ SLP(C) NO. 4121/2021)

CIVIL APPEAL NO. 884 OF 2021

(@ SLP(C) NO. 4138/2021)

CIVIL APPEAL NO. 885 OF 2021

(@ SLP(C) NO. 4100/2021)

CIVIL APPEAL NO. 886 OF 2021

(@ SLP(C) NO. 4200/2021)

CIVIL APPEAL NO. 887 OF 2021

(@ SLP(C) NO. 4201/2021)

CIVIL APPEAL NO. 888 OF 2021

(@ SLP(C) NO. 4219/2021)

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CIVIL APPEAL NO. 889 OF 2021

(@ SLP(C) NO. 4160/2021)

CIVIL APPEAL NO. 890 OF 2021

(@ SLP(C) NO. 4360/2021)

CIVIL APPEAL NO. 891 OF 2021

(@ SLP(C) NO. 4362/2021)

CIVIL APPEAL NO. 892 OF 2021

(@ SLP(C) NO. 4361/2021)

W.P.(C) NO. 309/2021

J U D G M E N T

R.F. Nariman, J

1. IA No. 35153/2021 in SLP(C) No. 3937/2021 being an application for

intervention is allowed. Leave granted in all the Special Leave

Petitions.

2. The present batch of civil appeals raise important questions on the

provisions contained in Part IXA of the Constitution of India. The Goa

State Election Commission [“SEC”] decided to postpone the elections

to 11 Municipal Councils whose terms were to expire on 04.11.2020.

The elections were scheduled to be held on 18.10.2020, which were

postponed to 18.01.2021 in view of the COVID-19 pandemic situation

2

in the State of Goa. On 03.11.2020, the Governor of Goa appointed

the Law Secretary of the Government of Goa, a member of the IAS, as

State Election Commissioner which duties were to be in addition to his

duties as Law Secretary. By an order dated 05.11.2020, Municipal

Administrators were appointed by the Department of Urban

Development (Municipal Administration) for all these municipal councils

whose terms had expired. By a notification dated 14.01.2021, the Goa

SEC further postponed the election for a period of three months i.e., till

April, 2021 or the election date which may be determined by the

Commission.

3. On 04.02.2021, the State of Goa published an amendment to Section

10(1) of the Goa Municipalities Act, 1968 [“Goa Municipalities Act”] in

the official gazette, by which the time frame for issuance of a

notification for reservation of wards was stated as being “at least seven

days” before the notification for schedule of dates and events of the

elections. On the same day, the Director of Municipal Administration

issued an order for reservation of wards for 11 municipal councils

within the State of Goa. We are informed by the SEC that on

05.02.2021, electoral rolls were prepared and returning officers

appointed for an ensuing election.

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4. Meanwhile, being aggrieved by the order dated 04.02.2021, 9 writ

petitions were filed before the High Court of Bombay at Goa between

09.02.2021 and 12.02.2021 challenging the aforesaid order on various

grounds. By a separate writ petition, being W.P. No.92/2021, the

amendment to Section 10(1) also came to be challenged. This matter

is pending hearing and final disposal before the High Court, and has

been segregated from the other writ petitions which were disposed of

by the High Court.

5. On 15.02.2021, the writ petitions came up for hearing and the High

Court was pleased to list the matters for final disposal on 22.02.2021. It

is stated by Shri Nadkarni, learned Senior Advocate appearing on

behalf of first Respondent in civil appeal arising out of SLP(C) No.

3937/2021, that this was done with the understanding between the

parties that the election schedule would not be notified till the disposal

of the writ petitions.

6. On 22.02.2021, as the Division Bench at Goa commenced the hearing

of the petitions, a notification of the same date, time being 9.00 a.m.,

was presented to the Goa Bench, by which elections to the 11

municipal councils commenced. The petitions were then taken up and

4

heard by the learned Division Bench. Two judgments were delivered,

one by Bharati Dangre, J., and one by M.S.Sonak, J. After discussing

in some detail the relevant constitutional and statutory provisions and

the judgments of this Court and the Bombay High Court, the Division

Bench allowed the writ petitions as follows:

“81. In the wake of the above reasoning, we pass the

following order:

(a) Writ Petition No. 515 of 2021 (filing) is dismissed.

(b) Writ Petition No.85 of 2021, 86 of 2021, 87/2021,

88/2021, 90/2021, 91/2021, 524/2021 (Filing) and 525/2021

(Filing) are hereby allowed. The impugned order dated

04/02/2021 issued by the Director and ex-officio Additional

Secretary, Municipal Administrator/ Urban Development,

Goa in so far as it concerned the Municipal Council of

Sanguem, Mormugao, Mapusa, Margao and Quepem is

quashed and set aside.

(c) By a Writ of Mandamus, we direct the Director and ex-

officio Additional Secretary, Municipal Administrator/ Urban

Development, Goa to issue fresh Notification under sub-

section 1 of Section 9 r/w. Subsection 1 of Section 10 of the

Goa Municipalities Act, 1968 within a period of 10 days from

today, thereby ensuring inter alia, reservation for women of

not less than one-third of the total number of seats reserved

for direct elections to the Municipal Councils.

(d) While exercising the power afresh and rectifying the

gross illegalities pointed out in our judgment and order, the

Director shall give due weightage to our observations made

therein.

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(e) The State Election Commission of Goa is directed to

expeditiously notify the election programme, on the order for

reservation of seats in the Municipal Councils being issued

by the Director, Respondent No.2 and the State Election

Commission shall align the schedule of election in a

manner, to ensure its completion by fixing up its various

stages as per the Goa Municipalities (Election) Rules, 1969

and the culmination of the process on or before 15th

April,2021.

(f) No order as to costs.”

Stay, though requested for, was declined.

7. An SLP was moved by the State of Goa being SLP (C) No.3937 of

2021, and this Court, by its order dated 04.03.2021, was pleased to

observe:

“Issue notice.

Having heard Mr. Tushar Mehta, learned Solicitor General

for the petitioner, Mr. Atmaram NS. Nadkarni, learned Senior

Advocate for the Respondent No.1 and Mr. Abhay Anil

Anturkar, learned counsel for the Respondent No.2, we stay

the impugned direction of the High Court as well as the

Election Commission notification which is in pursuance of

the High Court judgment.

Pleadings to be completed before the next date of hearing.

List on Tuesday, the 9th March, 2021.

Liberty is granted to learned counsel to file written

arguments in the meantime.”

8. This is how the matter has been placed before us today i.e., on

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9.3.2021. Shri Tushar Mehta, learned Solicitor General appearing on

behalf of the State of Goa, read to us Articles 243T, 243ZA, 243ZG of

the Constitution of India and Sections 9, 10 and 22 of the Goa

Municipalities Act. The aforesaid Articles mirror Part XV of the

Constitution and thus, the judgments of this Court on Part XV are

extremely relevant.

9. According to the learned Solicitor General, first and foremost, the bar to

interference by courts in electoral matters contained in Article

243ZG(a) gets attracted as the order dated 04.02.2021 relating to

delimitation of constituencies and allotment of seats to such

constituencies is a “law” for the purposes of 243ZG(a), attracting the

constitutional bar which prohibits any court from entertaining a

challenge to the aforesaid order’s validity. For this purpose, he relied

heavily on Meghraj Kothari v. Delimitation Commission, (1967) 1

SCR 400. Even otherwise, the concession made by the learned

Advocate General in the High Court cannot bind a constitutional court

which must give effect to a constitutional bar in electoral matters, and

once the election schedule is notified, there is a complete judicial

hands-off qua challenge to such election schedule which would have

the effect, in any manner, of thwarting or postponing the aforesaid

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election schedule. For this purpose, he relied upon the constitutional

bar contained in Article 243ZG(b), and relied on a plethora of case law

namely, 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, Mohinder Singh

Gill v. Chief Election Commr., (1978) 1 SCC 405, Lakshmi Charan

Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689, Indrajit Barua v.

Election Commission of India, (1985) 4 SCC 722, Anugrah Narain

Singh v. State of U.P., (1996) 6 SCC 303, Election Commission of

India v. Ashok Kumar, (2000) 8 SCC 216, Kishansing Tomar v.

Municipal Corpn., Ahmedabad, (2006) 8 SCC 352, W.B. State

Election Commission v. Communist Party of India (Marxist) ,

(2018) 18 SCC 141, Dravida Munnetra Kazhagam v. State of T.N.,

(2020) 6 SCC 548, Laxmibai v. Collector, (2020) 12 SCC 186. He

also relied on judgments which in other contexts, such as cooperative

societies for example, accepted what is laid down in Ponnuswamy’s

judgment even without any constitutional or statutory bar, stating that

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the only method of challenging an election is after the election process

is over, by means of an election petition. For this purpose, he relied

upon Section 22 of the Goa Municipalities Act which, according to him,

contained grounds wide enough to set aside the entire election.

10. Shri Mukul Rohatgi, learned Senior Advocate appearing on behalf of

the appellant in civil appeal arising out of SLP(C) Diary No. 6385/2021,

referred to the judgment in Lakshmi Charan Sen v. A.K.M. Hassan

Uzzaman (supra) and in particular the passage about how a court

ought not to interfere with an election at a stage in which the election

process is “imminent” i.e., about to start. He then relied upon Election

Commission of India v. Ashok Kumar (supra) for the proposition that

even if there were certain faults after an election process is underway,

these faults must be ignored as they can always be the subject matter

of an election petition after the elections are complete. For this

purpose, he also relied heavily upon Election Commission of India v.

Shivaji, (1988) 1 SCC 277 and read from Chandrachud, J.’s judgment

in W.B. State Election Commission v. Communist Party of India

(Marxist) (supra) speaking of a judicial hands-off until the election

process is over.

11. Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of

9

the SEC, relied upon the judgments in Kishansing Tomar v.

Municipal Corpn., Ahmedabad (supra) and Anugrah Narain Singh

v. State of U.P. (supra) and emphasized the fact that timely elections

had to be held for which the SEC alone was in charge. He pointed out

that a huge machinery had to be set up and was set up pursuant to the

election notification that has been issued, all of which would be set at

naught if the impugned judgment is not set aside. He further added

that the observations made by the impugned judgment on the State

Election Commission’s indolence and non-action were not fair to the

Commission and asked that they be deleted.

12. Shri Vinay Navare, learned Senior Advocate appearing on behalf of

the appellant in civil appeal arising out of SLP(C) Diary No. 6385/2021,

also emphasized the non obstante clause contained in Article 243ZG.

He also went into and attacked the judgment’s findings on women’s

reservation not being correctly made and that the rotation principle was

not correctly observed. He strongly advocated that the de minimis non

curat lex principle be applied to these situations particularly when the

election process is already underway. So far as the judgment striking

down the impugned order on the ground that OBC reservation was

less than 27% as mandated by Section 9(2)(bb) of the Goa

10

Municipalities Act, he argued that the judgment itself made it clear that,

though not raised in the writ petitions, the Judges took it up suo motu

and set aside the order even on this ground.

13. Shri Atmaram Nadkarni, learned Senior Advocate appearing on behalf

of first Respondent in civil appeal arising out of SLP(C) No. 3937/2021,

was at pains to point out that both Shri Mehta and Shri Rohatgi did not

challenge the impugned judgment on merits. He was also at pains to

point out that in the facts of the present case, there was no delimitation

commission which is headed by a retired judge but the entire exercise

of delimitation and reservation is done by an executive officer of the

Government. He argued that this Court ought not to exercise its

jurisdiction under Article 136 of the Constitution at all in view of the fact

that the SEC in the present case was not an independent body but was

acting through the Law Secretary, Government of Goa, which is what

led to the order dated 04.02.2021. He strongly relied upon two earlier

Bombay High Court judgments in which solemn statements had been

made before the High Court that the State Government would issue

reservation notifications at least 3 weeks before the notification which

lays down the schedule for elections. He further argued that the

lightning speed with which everything was done on one day and which

11

was correctly commented upon by the High Court judgment showed

complete non-application of mind insofar as reservation of

women/SCs/STs/OBCs and the principle of rotation was concerned.

He also added that there was malice in law so far as the SEC is

concerned, as has been found by the High Court. Contrary to

assurances made before earlier Division Benches, the State

Government first amended Section 10 of the Goa Municipalities Act

and thereafter published the impugned order reserving Municipal

Wards for various categories, and then announced the elections

without waiting for at least three weeks. The High Court was not told

that on 05.02.2021 itself the SEC had made up its mind to hold the

election on 20.03.2021. Had this fact been disclosed to the High

Court, it could have heard the writ petitions much before 22.2.2021. He

also stressed the fact that despite the fact that the State Government

offices begin at 9:30 a.m., a notification was pulled out at 9:00 a.m. on

22.02.2021 so as to forestall the High Court from commencing the

hearing of the writ petitions with a fait accompli, namely, that the

election process has now started. He also argued that even after our

order dated 04.03.2021, the Goa SEC issued a notification on

12

04.03.2021, not adhering to the original timelines fixed but extending

the time period for filing of nominations from 04.03.2021 till 06.03.2021

and thus rescheduled the elections. According to the learned Senior

Advocate, the bar contained in Article 243 ZG(a) and (b) do not apply

on the peculiar facts of this case. Further, the High Court judgment was

correct on merits so far as women’s reservation was concerned as

Article 243T mandates a reservation of at least one-third, using the

word “shall” and using the words “not less than”, making it clear that in

the case of a fraction, the fraction has to be rounded up to the figure

one. He also relied upon a plethora of judgments in order to buttress

his submissions.

14. Shri Vivek Tankha, learned Senior Advocate appearing for the first

Respondent in civil appeal arising out of SLP(C) No. 4121/2021,

emphasized that the SEC that is constituted under Article 243K is on

par with the Election Commission of India. For this, he emphasized, in

particular, the proviso in Article 243K(2) which makes it clear that the

State Election Commissioner shall not be removed from his office

except in like manner and on the like ground as a Judge of a High

Court, and the conditions of service of the State Election

Commissioner shall not be varied to his disadvantage after his

13

appointment. This provision, according to the learned Senior Advocate,

ensures that the SEC is an independent constitutional functionary

which is to oversee elections conducted at Panchayat and Municipal

levels. The whole problem in the present case has arisen only

because this mandate of the Constitution has been flouted by the

Government of Goa in that the Law Secretary has been given

additional charge and made the State Election Commissioner, leading

to the SEC not functioning as an independent body and, in fact, acting

so as to pre-empt the jurisdiction of the High Court in challenging a

notification issued by the Director under Section 10 of the Goa

Municipalities Act. He reiterated the facts of this case as pointed out

by Shri Nadkarni and relied, in addition, to Bendict Denis Kinny v.

Tulip Brian Miranda & Ors., (2020) SCC Online 802 for the

proposition that the High Court’s doors are never closed under Article

226 of the Constitution of India in deserving matters, in particular

where the court’s process is sought to be overreached by a non-

functioning non-independent State Election Commission.

15. Shri Ninad Laud, learned counsel appearing on behalf of the

intervenor in SLP(C) No. 3937/2021, cited the judgment in Anugrah

Narain Singh v. State of U.P. (supra) and pointed out that under the

14

Goa Municipalities Act, just as under the UP Act that was considered in

that case, orders of delimitation, reservation and allotment of seats do

not statutorily have the force of law, and can thus be challenged in a

writ petition filed under Article 226 of the Constitution of India. He

argued that this decision distinguishes Meghraj’s case (supra) and

would be applicable on the facts contained in the present case, as a

result of which it was within the jurisdiction of the High Court to strike

down the order of the Director reserving seats in wards dated

04.02.2021. He also made a reference to various provisions of the Goa

Municipalities Act which specifically provide that when fractions are to

be taken into account, they should be ignored. Such provision is

conspicuous by its absence in Sections 9 and 10 of the Goa

Municipalities Act, which is required to follow the constitutional

mandate that is contained in Article 243T of the Constitution of India.

16. Having heard learned counsel for all parties, it is important to

emphasize a few background facts before coming to the impugned

judgment in the present case. In Dnyaneshwar Narso Naik v. State

of Goa, WP No. 179/2020, a Division Bench of the Bombay High Court

at Goa, by its judgment dated 11.12.2020, (in the context of Zilla

Panchayat elections in Goa) recorded as follows:

15

“98. In this case, there is yet another disturbing feature.

Despite repeated letters and reminders from the SEC

commencing from 11.06.2019 to the State Government

requiring the State Government to complete the exercise of

delimitation, reservation, and rotation of reserved seats,

such exercise was completed and notified only on

20.02.2020, knowing fully well that the term of the earlier

members was to expire on 24.03.2020 and the SEC would

require a minimum 26 days to complete the election

process. As noted earlier, the learned counsel for the

Petitioners have pointed out that the purpose for this delay

and the issuance of forthcoming Notification by the SEC

was to preempt any challenges to the impugned Notification

dated 20.02.2020 before the Constitutional Court. The

learned counsel for the Petitioners pointed out that this is

invariably done so that once the election process sets in, the

Constitutional Courts are extremely reluctant to interfere

with the election process in deference to the provisions in

Article 243-O of the Constitution.

xxx xxx xxx

101. Thereafter, on account of the COVID-19 Pandemic

situation, the election could not be held on 22nd March 2020

as scheduled. On 14.10.2020, this Court ordered these

matters to be placed for final hearing in the week

commencing from 23.11.2020. The final hearing

commenced on 24.11.2020. During the final hearing,

Notifications were issued fixing the date of polling on

12.12.2020. Once again it was contended now that the

election process is so far advanced, this Court ought not to

grant any reliefs to the Petitioners. Thus, by delaying the

issuance of impugned Notifications, the State Government

has virtually succeeded in depriving the Petitioners of a

reasonable opportunity of seeking judicial review before this

Court. Again, there is no explanation whatsoever in the

affidavit filed on behalf of the State Government as to why

Notifications regarding reservation were not issued earlier

16

even though the SEC was constantly reminding the State

Government for issuance of the same.

102. The learned Advocate General has now, however,

made a statement that hereafter the exercise of notifying

reservations will be made at least three weeks before any

Notification is issued under Rule 10(1) of the said Rules to

commence the election process. According to us, this period

of hardly three weeks is too short and this exercise of

notifying the reserved constituencies must be made at least

two months before the date of issuance of Notification under

Rule 10(1) of the said Rules. We, therefore, direct the State

Government to issue Notification reserving and/or rotating

reserved seats at least two months before the date of

issuance of Notification under Rule 10(1) by which the

election process to the Panchayats commences.”

17. Likewise, a few days later, a Division Bench of the High Court, by an

order dated 21.12.2020, in Sujay S. Lotlikar v. State of Goa, LD-VC-

CW-359-2020, also specifically recorded:

“5. Today, the learned Advocate General for the State of

Goa makes a statement that the notifications for delimitation

and reservation will be issued by the appropriate authorities

whom he represents, at least three weeks prior to the date

of the notification of the schedule for municipal election.”

18. This order is important in the facts of the present case as it dealt

directly with Municipal elections in some of the very wards that were

before the High Court in the impugned judgment.

19. Contrary to the Advocate General’s statement made before two

Division Benches of the High Court, the State Government amended

Section 10 of the Goa Municipalities Act by adding a proviso on

17

04.02.2021, which then provided that such orders shall be issued at

least 7 days before the date of notification of the General Elections.

Armed with this amendment, the Law Secretary as State Election

Commissioner, by a communication dated 05.02.2021 to the Director,

Urban Development, requested the aforesaid Director to issue an order

under Section 10 of the Goa Municipalities Act “at an early date”

insofar as the 11 Municipal Councils in this case are concerned, as

elections are proposed to be held on by 20.03.2021. With retrospective

effect and with lightning speed, the Director complied with this request

on a day previous to this date, and provided for reservations vide order

dated 04.02.2021 in all 11 Municipal Councils for

women/SCs/STs/OBCs. To make matters worse, the SEC did not

disclose to the Court that vide a note dated 05.02.2021, elections were

to be held on 20.03.2021. The High Court was thus lulled into a false

sense of security when writ petitions that were filed between 9

th

and

12

th

February, 2021, challenging the 04.02.2021 order, were taken up

on 15.02.2021 and were then set down for final hearing on 22.02.2021.

To make matters worse, when the Division Bench of the High Court

commenced hearing these writ petitions at 9.00 a.m. on 22.02.2021, it

18

was provided with a notification announcing the schedule of elections

at 9:00 a.m. on 22.02.2021. This is despite the fact that the State

Government’s offices open only at 9:30 a.m. It is in the background of

these disturbing facts that the writ petitions were then taken up and

decided by the Division Bench of the High Court on 01.03.2021.

20. Both Judges delivered judgments in this case. The judgment of

Bharati Dangre, J. held as follows:

“5. Nine Writ Petitions came to be instituted before this

Court, pursuant to the order passed on 04/02/2021 by the

respondent no.2 posing a challenge to the determination of

the reservation of seats in different Wards of Municipal

Councils for the purpose ensuing Municipal elections. The

said order reserved the seats for different categories being

Scheduled Castes, Scheduled Tribes, Other Backward

Classes and women and purported it to be complaint with

the provisions contained in the Goa Municipalities Act, 1968.

The aforesaid Writ Petitions were filed before this Court

between 09/02/2021 to 12/02/2021 and came to be listed

before the Division Bench on 15/02/2021, when notice came

to be issued for final disposal, making it returnable on

22/02/2021. The learned counsel for the Petitioners

submitted that this was on the understanding that up to

22nd February 2021, the Respondents will not declare the

election schedule. However, on 22nd February 2021 itself

when the matters were to be taken up for final disposal, the

State Election Commission (SEC) declared the election

schedule. On the returnable date we heard the respective

Counsel for the petitioners and the learned Advocate

General. Mr. D. Pangam, learned Advocate General also

submitted that the issuance of such election schedule will

not be urged as a ground to deny any reliefs to the

Petitioners if such reliefs are indeed found to be due. He,

19

however, clarified that he would be submitting that this Court

ought not to grant any reliefs to the Petitioners since, even

on the date of the institution of the petitions, the elections to

the Municipal Councils were quite imminent.

xxx xxx xxx

13. Mr. Joshi, learned counsel appearing for the SEC

admitted that there has been constitutional infraction on the

part of the Director, in failing to reserve not less than one-

third of the total number of seats in Mormugao and Mapusa

Municipal Councils, in favour of women. On questioned

whether the Commission has pointed out the flaw, his

answer is in the negative. He submits that the issue of

reservation is within the purview of the Directors and

therefore, notwithstanding the constitutional or statutory

infraction, the SEC is helpless and has no choice but to

proceed with the elections based on the impugned order

dated 4th February 2021 and since it is bestowed with a

duty to conduct timely elections.

xxx xxx xxx

16. Pertinent to note that the noting itself provide solution,

by enlisting the mechanism to be adopted which reflect, that

since reservation for women is done by rotation and after

delimitation done in 2015, rotation end up in three terms,

commencing from 2015 and going to end in 2026. After

charting the reservation which is already provided for

women category in 2015 and 2021, the solution offered is

the remaining Wards which are not reserved for women in

the earlier two elections, may be reserved in 2026. Implicitly,

the stand taken is that in order to complete the fraction, the

seat would be rounded off in the three terms by rotation, in

order to avoid excessive reservation to women and

therefore the aforesaid solution.

We are afraid whether this would serve the intention of

clause 3 of Article 243T as well as the mandate of the State

20

Legislation, which, effectively read would mean that on

constitution of a Municipal Council for every term, not less

than 1/3rd seats shall be reserved for women. The

expression used in the Constitution as well as in the

Municipalities Act, being "not less than" or "no less than",

make it clear that even a fraction cannot be ignored

because by ignoring the same, the reservation would be

minimized than 1/3rd and if it is done so, it would amount to

infraction of the constitutional mandate.

xxx xxx xxx

18. Keeping in mind the aforesaid philosophy in introducing

reservation for women by the Constitution and subsequently

in the State Legislation, we are of the firm opinion that the

course adopted by the respondent no.2 violate the mandate

of law. The solution offered by the respondent no.2 in taking

forward the reservation and to be adjusted within the three

terms, is also, according to us defeat the very purpose as

the mandate contained in the first proviso appended to sub-

section 1 of Section 9 which is to be followed in every

Council which means, the Municipal Council constituted or

deemed to be constituted under the Act for a Municipal area

and as a body corporate with a prescribed tenure. The

fraction even if it is created in calculating 1/3rd reservation

cannot be permitted to be rounded off towards the earlier

denomination and the normal principle for rounding off,

which is based on logic and common sense; "if part is one

half or more, its value shall be increased to one and if less

than one half the value shall be ignored", cannot be made

applicable here.

In Ashok Maniklal Harkut Vs Collector, Amravati and

others [1988 Mh.L.J.378], the Full Bench of this Court, in

the context of provisions of Section 55(1) and 55(2) of the

Maharashtra Municipalities Act held that a valid no-

confidence motion must be passed by not less than two-

thirds of the total number of councilors was mandatory. The

Full Bench held that the total number of votes must not be

21

less than two-third though they may be more. The fraction

cannot be ignored since if the fraction is ignored then the

majority will be two-third of the councilors. Thus, where the

total number of elected councilors at the time when the

motion was moved 19, support of only 13 councilors, being

less than two-third, was not sufficient to carry such a no-

confidence motion.

The Hon'ble Apex Court has reiterated the view taken by

Full Bench of this Court and in the case of Ganesh Sukdev

Gurule v/s. Tahsildar Sinnar & Ors (2019) 3 SCC 211.

The issue for deliberation before the Apex Court involved

Section 35 of the Maharashtra Village Panchayats Act,

1959, which is a provision for no confidence motion and

sub-section 3 of the said Section indicating the requirement

of majority of not less than two third of total number of

members who are for the time being entitled to sit and vote.

Construing the phrase "not less than", Their Lordships of the

Apex Court, dealing with the arguments that when the

fraction arrived is 5.33, it should be rounded to 5 has held

as under:

'12. The next submission pressed by the respondent is

that for applying the principle of rounding off 5.33 votes

have to be rounded as to five. Thus, five votes are

sufficient to accept majority for the purpose of passing

no-confidence motion. Whether 5.33 votes can be

rounded up into 5 votes or requirement is at least six

votes is the real issue. When there are clear words in

the statute i.e. “not less two-third of the total number of

members” applying the principle of rounding off, 5.33

votes cannot be treated as 5. Vote of a person cannot

be expressed in fraction. When computation of a

majority comes with fraction of a vote that fraction has to

be treated as one vote, because votes cannot be

expressed in fraction. The principle that figure less than .

5 is to be ignored and figure more than .5 shall be

treated as one, is not applicable in the statutory scheme

22

as delineated by Section 35. Provision of Section 35(1)

which provides for requirement for moving motion of no-

confidence by not less than one-third of the total number

of the members who are for the time being entitled to sit

and vote at any meeting of the Panchayat, is the same

expression as used in sub-section(3). Obviously,

requirement of not less than one-third number for

moving motion has to be computed from total number of

the members who are entitled to sit and vote. Thus, the

same expression having been used in sub-section (3) of

Section 35, both the expressions have to be given the

same meaning. Thus, one-third of total number of

members who are entitled to sit and vote have to be

determined on the strength of members entitled to vote

at a particular time. The same meaning has also to be

applied while computing two-third majority.'

In light of the aforesaid authoritative pronouncements, we

find that the approach adopted by the respondent no.2

would stare in face of the constitutional mandate, reserving

1/3rd seats for women and to this extent the impugned order

dated 04.02.2021 is liable to be quashed. By the same

reasoning, the impugned order which reserve 8 seats in

Margao Municipal Council where the total number of seats

to be filled in are 25, must also be quashed and set aside.

19. xxx xxx xxx

The Director has acted in breach of the Constitution as well

as the statutory provision and the impugned order dated

04.02.2021 is therefore required to be quashed and set

aside as not adhering to the mandate of law.

xxx xxx xxx

23. When our attention is invited to the action of the Director

and on the conduct of the Election Commission as a mute

spectator, which in fact was expected to act and live upto its

role conferred by the constitution, ensuring free and fair

23

elections, we are not expected to be oblivious to the

situations which have been drawn to us. We do not

appreciate the helplessness expressed by the State Election

Commission, which is supposed to be an authority

independent of the Government. If the illegality has been

noticed by the State Election Commission, we expect it to

act with promptitude and issue appropriate directions to the

Director to rectify the said action by ensuring that it follows

the mandate of the constitution rather than to rush and issue

the election schedule. Its power of superintendence over the

“conduct of elections” is wide enough, which include the

power to take all steps necessary for conduct of free and fair

election. The silence on part of the constitutional functionary,

according to us, is highly detrimental to the democratic

concept of this country. We say nothing more.

xxx xxx xxx

26. We would have appreciated the submission advanced

by the learned Advocate General that mere absence of

policy would not lead to arbitrariness, albeit, we have before

us instances as reflected in the Noting from where we have

discerned that absence of policy has resulted into non

discernable and non justifiable rotation of seats in different

wards of respective Municipal Councils. The prescribed

reservation of women as per the mandate is one such

instance. Similar is the case in respect of the OBC

reservations, though none of the petitioners before us raised

the said ground before us, however, since we have perused

the Noting, we are enlisting it as one of the aspect

demonstrating non application of mind and attitude towards

flouting the mandate of the State legislation. The Goa

Municipalities Act, prescribes reservation for other backward

classes based on concentration of the population of the said

class in a particular ward. By the (amendment) Act, 2016

clause (bb) of sub section 2 of Section 9 has prescribed

27% number of seats to be filled in the election of Municipal

Council to the person belonging to other back ward classes

24

and such seats are to be allotted by reservations to different

wards in the Council. The Noting produced before us reflect

that there was utter failure to adhere to the said the

proportion and other Municipal Councils where 27% of seats

are reserved for other backward classes, the proportion of

reservation in other Municipal Council stood to the

percentage of 20% being in Valpoi, Pernem and Sanguem.

In the remaining Municipal Councils, the percentage of

reserved seats for OBC vary from 21% to 25%.

Another instance of arbitrariness or non-application of mind

is the reservation in ward no. 1 in Sanguem Municipal

Council; the ward is reserved for Scheduled Tribe category

whereas the percentage of population in the Ward of ST is

0.23% and a specific averment is made in the petition,

which is not denied is there is only one voter belonging to

the said category. If the respondent no. 2 would have paid

attention to the wording applied in Section 10 “having regard

to the concentration of the population” and given the said

term significance as population of SC, ST and OBC, the

said error was avoidable. By ignoring the concentration of

the population, the situation that has arisen wherein ward

no. 10 which has ST population of 206 as against total

population of 681, by following cycle of rotation, since in the

year 2010, ward no. 4 which had maximum ST population

and it was reserved in the next election, according to us, the

next highest population ward should have been reserved in

the year 2013. The challenge to the reservation of the said

provided in the year 2021 as arbitrary, justify the said

accusation.

xxx xxx xxx

31. Now we turn to the relief which the petitioners are

entitled to. Once we have recorded that our interference in

the process of election has necessitated on account of the

flaws which defeat the constitutional mandate of reservation

and rotation, our endeavor is to ensure that our decision to

intervene do not cause any interruption or obstruction or in

25

any way to protract the election procedure but on the

contrary it subserve the progress of election and facilitates

its completion. Amongst the 11 Municipal Councils whose

process of reservation and rotation has been alleged to be

flawed one, their term has already expired and it is being

informed that its administration has been taken over by the

body of Administrators. By the Notification published on

14/01/2021, the SEC has already postponed the elections

for a period of three months i.e. till April 2021 or the election

date which may be determined by the Commission. By

passing the impugned order on 04/02/2021 the reservation

has been determined by the respondent No.2 and on

22/02/2021 the election programme has been notified by the

respondent No.3. On perusal of the said programme, it is

apparent that it will consume a period of 22 days from the

last date of filing of nomination till the declaration of result

on 22/03/2021. Since the Municipal Councils are already

under the management of the administrator and the time

scheduled for completion of election has been extended by

the election Commission till 14/04/2021, and since from the

date of pronouncement of our judgment still there is a period

of 45 days available, in our opinion on rectification of errors

which amount to infringement the constitutional mandate not

only qua the reservation to women but also other infractions

which we have noticed, a fresh programme shall be notified.

If the authorities move with lightning speed, which they are

expected to, since in the exigency of the situation which

prompted the SEC to be agile in issuing the Notification

declaring the elections when the Writ Petitions were pending

before the Court, challenging the impugned Notification,

expecting the same promptitude by the election Commission

and on behalf of the State Government to rectify its

procedure, and ensure free and fair election which is a

hallmark of democracy, we direct the respondent No.2 to

redetermine the reservation of seats in the Wards of the

Municipal Council in the light of the observations made by

us in the judgment. This exercise shall be undertaken within

a period of 10 days from today, which will leave sufficient

26

time for the SEC to notify the election programme and

complete the election process before 15/04/2021, by

adhering to all the necessary stages as prescribed under

the Goa Municipalities Election Rules, 1969.”

21. Likewise, M.S.Sonak, J. delivered a concurring judgment holding:

“48. Applying the principles laid down by the Full Bench and

the Hon’ble Supreme Court to the position of reservation in

Mormugao Municipal Council, it will have to be held that the

reservation of only eight seats out of a total number of 25

seats in favour of women is a reservation which is less than

one-third the total number of seats to be filled by direct

election to the Mormugao Municipal Council. Similarly, the

reservation of only six seats from out of a total number of 20

seats to be filled by direct election to the Mapusa Municipal

Council amounts to a reservation less than one-third of the

total number of seats to be filled by direct election. The

Director has acted in breach of both constitutional as well as

statutory provisions in failing to provide reservation of not

less than one-third of the total number of seats, in favour of

women, and to that extent the impugned order dated 4th

February 2021 is required to be quashed and set aside.

49. Mr. Joshi, learned counsel appearing for the SEC

admitted that there has been constitutional infraction on the

part of the Director, in failing to reserve not less than one-

third of the total number of seats in Mormugao and Mapusa

Municipal Councils, in favour of women. He, however, on

instructions stated that the SEC is not concerned with the

issue of reservation and therefore, notwithstanding the

constitutional or statutory infraction, the SEC is quite

helpless and will have no choice but to proceed with the

elections based on the impugned order dated 4th February

2021 howsoever defective such order may be.

50. At least we did not hear any arguments from the learned

Advocate General that there was no constitutional or

statutory infraction on the part of the Director in reserving

27

less than one-third of the total number of seats in favour of

women.

xxx xxx xxx

51. The “understanding” of the Director of the constitutional

provisions in Article 243-T or statutory provisions in Section

9 of the said Act cannot be the basis for sustaining the

impugned order. The understanding of the Director is far

from reasonable contrary to what was contended by the

learned Advocate General. Neither the Constitution nor the

said Act gives the Director three election terms i.e. 15 years

to comply with the constitutional and statutory mandate of

reserving not less than one- third of the total number of

seats to be filled by direct election in “every municipality”.

Both constitutional provisions as also statutory provisions

make it abundantly clear that for each term the Municipality

or Municipal Council, must have at least one -third women

councilors, for a Municipality or Council to be regarded as a

validly constituted Municipality or Council.

52. This understanding or theory of complying with the

constitutional or statutory mandate in three installments

spread over 15 years is some unique device adopted by the

Director in a futile attempt to justify the gross constitutional

and statutory infraction. Such a justification finds no basis

either in the Constitution or the said Act. Such a justification

is neither legal nor reasonable. Based on such a

justification, there is no question of sustaining the order

dated 4th February 2021.

xxx xxx xxx

54. From the aforesaid, it is apparent that the Director

carries the impression that both the Constitution as well as

the said Act provide that the reservation in favour of women

must not exceed one-third the total number of seats, when

in fact, both the Constitution as well as the said Act provide

exactly opposite. The Director seems to hold the impression

28

that reserving seven seats out of a total of 20 seats in

Mapusa Municipal Council will “exceed and violate the

mandate of 1/3rd reservation which is 20 seats”. Such

understanding or impression of the Director flies in the face

of both Constitutional as well as statutory mandate that not

less than one-third of seats must be reserved in favour of

the women. This means that there can be no violation of

both Constitutional as well as statutory mandate if

reservation exceeds one-third but there will be a violation of

both Constitutional as well as statutory mandate if the

reservation is less than one-third.

55. Since the impugned order dated 4th February 2021 is

based upon such a gross misunderstanding of the

provisions of the Constitution and the said Act, the same,

will have to be quashed and set aside. Accordingly, the first

contention of the learned Advocate General that the

understanding of the Director being reasonable in support of

the impugned order dated 4th February 2021 will have to be

rejected. No understanding which results in doing what the

Constitution specifically prohibits can be held as reasonable

understanding. Any order based upon such understanding is

therefore ultimately vulnerable and will have to be quashed

and set aside.

xxx xxx xxx

59. In the aforesaid context, we do not appreciate the

helplessness expressed by the SEC, which is supposed to

be an authority independent of the Government of Goa. The

fortuitous circumstance that the SEC is also the Law

Secretary, Government of Goa is not sufficient circumstance

to express helplessness in the wake of an unconstitutional

and ultra vires order by the Director of Municipal

Administration/Urban Development. According to us, it was

the duty of the SEC to require the Director to immediately

rectify the impugned order and to provide for reservation of

less than one-third of the seats in favour of women, rather

than to rush and issue election schedule.

29

xxx xxx xxx

63. The contention that the writ Court ought not to interfere

with when the elections are imminent cannot be sole ground

to defend an indefensible order or a patent infraction of the

constitutional or statutory mandate. In this case, the learned

Advocate General, apart from contending that

“understanding” of the Director was not unreasonable, did

not urge even a single contention in defence of the

Director's failure to comply with the constitutional mandate

in Article 243-T(3) or Section 9(1) of the said Act. Normally,

at least plausible defence is put forth and the contention is

that the detailed adjudication may be postponed until the

conclusion of the election process. In this case, however,

the only contention was that this Court should adopt hands-

off doctrine because the elections were imminent. The

“hands-off doctrine” has been evolved not to legalize or

immunize patently unconstitutional orders or to enable the

parties to create a situation fait accompli.

xxx xxx xxx

77. The aforesaid means that there is a total disconnect

between the noting prepared and relied upon by the Director

and his affidavit dated 23rd February 2021. The noting

refers to the concentration of ST population whereas the

affidavit in terms states that there is no mandate to reserve

seats for SC or ST merely because the population of SC or

ST in those particular wards is high. The Director has gone

to the extent of stating that the Petitioners' contention draws

no support either from the Constitution or the said Act. In the

affidavit, there is no explanation why the rotation mandate

has been openly flouted.

78. Based on the disconnect between the affidavit filed by

the Director and his Noting, the impugned order in so far as

it reserves the ward Nos.4 and 7 in favour of ST, ignoring

the mandate of rotation of reserved seats, will have to be set

aside. Besides, the impugned notification, in so far as it

30

concerns Margao Municipal Council will also have to be set

aside on account of the constitutional and statutory

infraction of reserving less than one-third seats in favour of

women.

79. The Director after having admitted that there was no

policy based on which the reservation has been made or

rotation policy implemented, appears to have regarded the

absence of such policy as a licence to make reservations

based on his whims and caprices. Different yardsticks have

been applied in respect of different Municipal Councils.

There is no uniform policy even for the implementation of

the rotation mandate in the same councils. The entire

exercise of making reservations to no less than 11 councils

was completed by the Director in a single day i.e. 4th

February 2021 and even the impugned order was issued on

the same date. At least prima facie, even the amended

provisions of section 9(2)(bb) of the said Act in relation to

27% reservations for OBCs appear to have been completely

overlooked. The Noting that is a precursor for the issuance

of the impugned order dated 4th February 2021 and was

prepared on 4th February 2021 itself in a tearing hurry and

soon thereafter Law Secretary who is holding the post of

SEC issued the election schedule on 22nd February 2021

even though, these petitions had already been instituted and

were posted for final disposal on 22nd February 2021.

Based upon these artificially created events, the entire

defence was to press forth the hands-off doctrine and

overlook the gross illegalities and the constitutional and

statutory infraction by the Director.

80. For all the above reasons I concur and join my Sister,

Hon’ble Smt. Justice Bharati Dangre in allowing all the writ

petitions except Writ Petition No. 515 of 2021 and in issuing

the operational directions.”

22. This reasoning then led to the final conclusion which, as has been

31

extracted above, struck down the order dated 04.02.2021 and directed

the Director, Urban Development to issue a fresh order within 10 days

from the date of the judgment giving due weightage to the observations

contained in the judgments. Further, the SEC was then directed to

notify the election programme afresh so that the election process

culminates on or before 15.04.2021.

23. Part IXA of the Constitution titled “The Municipalities” was inserted by

the Constitution (Seventy-Fourth) Amendment Act, 1992 with effect

from 1

st

June, 1993. Article 243P defines “Municipal Area” and

“Municipality” as follows:

243P. Definitions.

xxx xxx xxx

(d) “Municipal area” means the territorial area of a

Municipality as is notified by the Governor;

(e) “Municipality” means an institution of self-government

constituted under article 243Q;

xxx xxx xxx

24. Municipalities are then divided into three categories under Article

243Q. The first is the Nagar Panchayat for a transitional area i.e., an

area in transition from a rural to an urban area; the second is the

Municipal Council for a “smaller urban area” and third, a Municipal

32

Corporation for a “larger urban area” as follows:

243Q. Constitution of Municipalities.

(1) There shall be constituted in every State, -

(a) a Nagar Panchayat (by whatever name called) for a

transitional area, that is to say, an area in transition from a

rural area to an urban area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area,

in accordance with the provisions of this Part:

Provided that a Municipality under this clause may not be

constituted in such urban area or part thereof as the

Governor may, having regard to the size of the area and the

municipal services being provided or proposed to be

provided by an industrial establishment in that area and

such other factors as he may deem fit, by public notification,

specify to be an industrial township.

(2) In this article, “a transitional area”, “a smaller urban area”

or “a larger urban area” means such area as the Governor

may, having regard to the population of the area, the density

of the population therein, the revenue generated for local

administration, the percentage of employment in non-

agricultural activities, the economic importance or such

other factors as he may deem fit, specify by public

notification for the purposes of this Part.

25. Article 243T is important and provides for reservation of seats in

Municipalities as follows:

243T. Reservation of seats.

33

(1) Seats shall be reserved for the Scheduled Castes and

the Scheduled Tribes in every Municipality 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 Municipality as the population of the

Scheduled Castes in the Municipal area or of the Scheduled

Tribes in the Municipal area bears to the total population of

that area and such seats may be allotted by rotation to

different constituencies in a Municipality.

(2) Not less than one-third of the total number of seats

reserved under clause (1) shall be reserved for women

belonging to the Scheduled Castes or, as the case may be,

the Scheduled Tribes.

(3) Not less than one-third (including the number of seats

reserved for women belonging to the Scheduled Castes and

the Scheduled Tribes) of the total number of seats to be

filled by direct election in every Municipality shall be

reserved for women and such seats may be allotted by

rotation to different constituencies in a Municipality.

(4) The offices of Chairpersons in the Municipalities shall be

reserved for the Scheduled Castes, the Scheduled Tribes

and women in such manner as the Legislature of a State

may, by law, provide.

(5) The reservation of seats under clauses (1) and (2) and

the reservation of offices of Chairpersons (other than the

reservation for women) under clause (4) shall cease to have

effect on the expiration of the period specified in article 334.

(6) Nothing in this Part shall prevent the Legislature of a

State from making any provision for reservation of seats in

any Municipality or offices of Chairpersons in the

Municipalities in favour of backward class of citizens.

26. Under Article 243U(1), every Municipality, unless earlier dissolved

34

under any law for the time being in force, shall continue for five years

from the date appointed for its first meeting and no longer. Importantly,

Article 243U(3) provides:

243U. Duration of Municipalities, etc.

xxx xxx xxx

(3) An election to constitute a Municipality shall be

completed, -

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the

date of its dissolution:

Provided that where the remainder of the period for which

the dissolved Municipality would have continued is less than

six months, it shall not be necessary to hold any election

under this clause for constituting the Municipality for such

period.

27. Article 243ZA provides for elections to Municipalities as follows:

243ZA. Elections to the Municipalities.

(1) The superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of, all

elections to the Municipalities shall be vested in the State

Election Commission referred to in article 243K.

(2) Subject to the provisions of this Constitution, the

Legislature of a State may, by law, make provision with

respect to all matters relating to, or in connection with,

elections to the Municipalities.

28. Article 243K of the Constitution provides as follows:

35

243K. Elections to the Panchayats.

(1) The superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of, all

elections to the Panchayats shall be vested in a State

Election Commission consisting of a State Election

Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the

Legislature of a State, the conditions of service and tenure

of office of the State Election Commissioner shall be such

as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be

removed from his office except in like manner and on the

like grounds as a Judge of a High Court and the conditions

of service of the State Election Commissioner shall not be

varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the

State Election Commission, make available to the State

Election Commission such staff as may be necessary for the

discharge of the functions conferred on the State Election

Commission by clause (1).

(4) Subject to the provisions of this Constitution, the

Legislature of a State may, by law, make provision with

respect to all matters relating to, or in connection with,

elections to the Panchayats.

29. It will be noticed that Article 243ZA(1) corresponds to Article 324

contained in Part XV dealing with elections to Parliament and the

legislative bodies of the States. Likewise, 243ZA(2) corresponds to

Article 328 contained in the same chapter.

30. Article 243ZG is important and states:

36

243ZG. Bar to interference by courts in electoral

matters.

Notwithstanding anything in this Constitution, —

(a) the validity of any law relating to the delimitation of

constituencies or the allotment of seats to such

constituencies, made or purporting to be made under article

243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question

except by an election petition presented to such authority

and in such manner as is provided for by or under any law

made by the Legislature of a State.]

This Article corresponds to Article 329 of the Constitution contained in

Part XV.

31. The relevant provisions of the Goa Municipalities Act are contained in

Sections 8 to 10A thereof:

8. Establishment and incorporation of Councils.

For every municipal area there shall be a Municipal Council.

Every such Council shall be a body corporate by the name

of “The ... Municipal Council” and shall have perpetual

succession and a common seal, and shall have power to

acquire, hold and dispose of property, and to enter into

contracts and may by the said name sue, or be sued,

through its Chief Officer.

9. Composition of Councils.

(1) Save as otherwise provided by this Act, every Council

shall consist of Councillors elected at ward elections;

Provided that—

37

(1) in every Council, no less than (1/3) seats shall be

reserved for women;

(2) in every Council, seat shall also be reserved for

Scheduled Caste, Scheduled Tribes and Other

Backward Class and for woman belonging to Scheculed

Caste, as the case may be, the the Scheduled Tribes

and Other Backward Class as provided in subsection (2)

(2) The Director shall from time to time by an order

published in the Official Gazette fix for each municipal area

—

(a) the number of elected Councillors in accordance with

the following table:

Class of

Municipal area

Number of elected

Councillors

i) ‘A’ Class The minimum number of elected

Councillors shall be 20, and for every

2500 of the voters in the municipal

area or part thereof above 50,000

there shall be one additional elected

Councillor, so, however, that the total

number of elected Councillors shall

not exceed 25;

(ii) ‘B’ ClassThe minimum number of elected

Councillor shall be 12, and for every

2500 of the voters in the municipal

area or part thereof above 10,000

there shall be one additional elected

Councillor, so, however, that the total

number of elected Councillors shall

not exceed 20;

(iii) ‘C’ ClassThe number of elected Councillors

shall be 10.

38

(b) the number of seats, if any, to be reserved for the

Scheduled Castes, Scheduled Tribes so that such

number shall bear, as nearly as may be, the same

proportion to the number of elected Councillors as the

population of the Scheduled Castes, Scheduled Tribes

in the municipal area bears to the total population of that

area and not less than one-third of such seats shall be

reserved for women and such seats shall be allotted by

rotation to different wards in the Council.

(bb) the number of seats, if any, to be reserved for

persons belonging to the category of Other Backward

Classes so that such number shall be twenty seven

percent of the number of seats to be filled in through

election in the Council and such seats shall be allotted

by rotation to different wards in the Council.

(c) the number of seats for the office of Chairperson in

the Council for Scheduled Castes, the Scheduled Tribes

and women so that such number will bear as nearly as

may be, the same proportion to the number of elected

Councillors as the population of the scheduled Castes,

Scheduled Tribes in the municipal area bears to the total

population of that area and such seats shall be allotted

by rotation to different constituencies in a Council.

(3) The reservation of seats for Scheduled Castes and

Scheduled Tribes made by an order under sub-section (2)

shall cease to have effect when the reservation of seats for

those Castes and Tribes in the House of the People ceases

to have effect under the Constitution of India:

Provided that nothing in this sub-section shall render any

person elected to any such reserved seat ineligible to

continue as a Councillor during the term of office for which

he was duly elected by reason only of the fact that the

reservation of seats has so ceased to have effect.

39

(4) Every order under sub-section (2) shall take effect for the

purposes of the next general election of the Council

immediately following after the date of the order.

xxx xxx xxx

10. Division of municipal area into wards and

reservation of wards for women, Scheduled Castes,

Scheduled Tribes and Other Backward Class.

(1) The Director shall from time to time by order published in

the Official Gazette, fix for each municipal area the number

and the extent of the wards into which such area shall be

divided. The Director shall specify in the order the ward in

which a seat is reserved for women but in so doing he shall

ensure that such a seat its reserved from time to time by

rotation in different wards of the municipal area. He shall by

a like order specify the wards in which seats are reserved

for Scheduled Castes, Scheduled Tribes or the Other

Backward Class, including the seats for offices of

Chairperson having regard to the concentration of

population of those Castes, or Tribes, or as the case may

be, of those class, in any particular wards.

(2) Each of the wards shall elect only one Councillor.

(3) Every order issued under sub-section (1) shall take

effect for the purpose of the next general election

immediately following the date of such order.

(4) Nothing in this section shall be deemed to prevent

women or persons belonging to the Scheduled Castes,

Scheduled Tribes or Other Backward Class for whom seats

are reserved in any Council, from standing for election and

being elected to any of the seats which are not reserved.

10A. Election of Councils.

The superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of, all

40

elections to the Council shall be vested in the State Election

Commission constituted under section 237 of the Goa

Panchayat Raj Act, 1994(Act 14 of 1994).

Bar contained in Articles 243ZG(b) / 329(b)

32. The locus classicus on the subject is by an early judgment of this

court which has been followed on innumerable occasions. N.P.

Ponnuswami v. Returning Officer, Namakkal Constituency (supra),

dealt with a petition that was filed under Article 226 before the Madras

High Court praying for a writ of certiorari in the following

circumstances:

“The appellant was one of the persons who had filed

nomination papers for election to the Madras Legislative

Assembly from the Namakkal Constituency in Salem district.

On 28th November, 1951, the Returning Officer for that

constituency took up for scrutiny the nomination papers filed

by the various candidates and on the same day he rejected

the appellant's nomination paper on certain grounds which

need not be set out as they are not material to the point

raised in this appeal. The appellant thereupon moved the

High Court under Article 226 of the Constitution praying for a

writ of certiorari to quash the order of the Returning Officer

rejecting his nomination paper and to direct the Returning

Officer to include his name in the list of valid nominations to

be published. The High Court dismissed the appellant's

application on the ground that it had no jurisdiction to

interfere with the order of the Returning Officer by reason of

the provisions of Article 329(b) of the Constitution. The

appellant's contention in this appeal is that the view

expressed by the High Court is not correct, that the

41

jurisdiction of the High Court is not affected by Article 329(b)

of the Constitution and that he was entitled to a writ of

certiorari in the circumstances of the case.” (at page 221)

33. This Court then summarized Part XV of the Constitution dealing with

elections as follows:

“In construing this Article, reference was made by both

parties in the course of their arguments to the other Articles

in the same Part, namely, Articles 324, 325, 326, 327 and

328. Article 324 provides for the constitution and

appointment of an Election Commissioner to superintend,

direct and control elections to the legislatures; Article 325

prohibits discrimination against electors on the ground of

religion, race, caste or sex; Article 326 provides for adult

suffrage; Article 327 empowers Parliament to pass laws

making provision with respect to all matters relating to, or in

connection with, elections to the legislatures, subject to the

provisions of the Constitution; and Article 328 is a

complementary article giving power to the State Legislature

to make provision with respect to all matters relating to, or in

connection with, elections to the State Legislature. A notable

difference in the language used in Articles 327 and 328 on

the one hand, and Article 329 on the other, is that while the

first two articles begin with the words “subject to the

provisions of this Constitution”, the last article begins with

the words “notwithstanding anything in this Constitution”. It

was conceded at the bar that the effect of this difference in

language is that whereas any law made by Parliament

under Article 327, or by the State Legislatures under Article

328, cannot exclude the jurisdiction of the High Court under

Article 226 of the Constitution, that jurisdiction is excluded in

regard to matters provided for in Article 329.”

(at pages 224,225)

34. This court held that “election” has to be understood in the wider

42

sense as follows:

“The discussion in this passage makes it clear that the word

“election” can be and has been appropriately used with

reference to the entire process which consists of several

stages and embraces many steps, some of which may have

an important bearing on the result of the process.”

(at page 228)

35. Dealing with the specific contention of the bar contained in Article

329(b) shutting out proceedings under Article 226, the Court then held:

“The question now arises whether the law of elections in this

country contemplates that there should be two attacks on

matters connected with election proceedings, one while they

are going on by invoking the extraordinary jurisdiction of the

High Court under Article 226 of the Constitution (the

ordinary jurisdiction of the courts having been expressly

excluded), and another after they have been completed by

means of an election petition. In my opinion, to affirm such a

position would be contrary to the scheme of Part XV of the

Constitution and the Representation of the People Act,

which, as I shall point out later, seems to be that any matter

which has the effect of vitiating an election should be

brought up only at the appropriate stage in an appropriate

manner before a Special Tribunal and should not be brought

up at an intermediate stage before any court. It seems to me

that under the election law, the only significance which the

rejection of a nomination paper has consists in the fact that

it can be used as a ground to call the election in question.

Article 329(b) was apparently enacted to prescribe the

manner in which and the stage at which this ground, and

other grounds which may be raised under the law to call the

election in question, could be urged. I think it follows by

necessary implication from the language of this provision

that those grounds cannot be urged in any other manner, at

43

any other stage and before any other court. If the grounds

on which an election can be called in question could be

raised at an earlier stage and errors, if any, are rectified,

there will be no meaning in enacting a provision like Article

329(b) and in setting up a Special Tribunal. Any other

meaning ascribed to the words used in the article would

lead to anomalies, which the Constitution could not have

contemplated, one of them being that conflicting views may

be expressed by the High court at the pre-polling stage and

by the election tribunal, which is to be an independent body,

at the stage when the matter is brought up before it.

I think that a brief examination of the scheme of Part XV of

the Constitution and the Representation of the People Act,

1951, will show that the construction I have suggested is the

correct one. Broadly speaking, before an election machinery

can be brought into operation, there are three requisites

which require to be attended to, namely, (1) there should be

a set of laws and rules making provisions with respect to all

matters relating to, or in connection with, elections, and it

should be decided as to how these laws and rules are to be

made; (2) there should be an executive charged with the

duty of securing the due conduct of elections; and (3) there

should be a judicial tribunal to deal with disputes arising out

of or in connection with elections. Articles 327 and 328 deal

with the first of these requisites, Article 324 with the second

and Article 329 with the third requisite. The other two articles

in Part XV, viz, Articles 325 and 326 deal with two matters of

principle to which the Constitution-framers have attached

much importance. They are: (1) prohibition against

discrimination in the preparation of, or eligibility for inclusion

in, the electoral rolls, on grounds of religion, race, caste, sex

or any of them; and (2) adult suffrage. Part XV of the

Constitution is really a code in itself providing the entire

ground-work for enacting appropriate laws and setting up

suitable machinery for the conduct of elections.”

(at pages 228-230)

44

36. The Court then summed up its conclusions thus:

“It may be pointed out that Article 329(b) must be read as

complementary to clause (a) of that article. Clause (a) bars

the jurisdiction of the courts with regard to such law as may

be made under Articles 327 and 328 relating to the

delimitation of constituencies or the allotment of seats to

such constituencies. It was conceded before us that Article

329(b) ousts the jurisdiction of the courts with regard to

matters arising between the commencement of the polling

and the final selection. The question which has to be asked

is what conceivable reason the legislature could have had to

leave only matters connected with nominations subject to

the jurisdiction of the High Court under Article 226 of the

Constitution. If Part XV of the Constitution is a code by itself

i.e., it creates rights and provides for their enforcement by a

Special Tribunal to the exclusion of all courts including the

High Court, there can be no reason for assuming that the

Constitution left one small part of the election process to be

made the subject-matter of contest before the High Courts

and thereby upset the time-schedule of the elections. The

more reasonable view seems to be that Article 329 covers

all “electoral matters”.

The conclusions which I have arrived at may be summed up

briefly as follows:

(1) Having regard to the important functions which the

legislatures have to perform in democratic countries, it

has always been recognized to be a matter of first

importance that elections should be concluded as early

as possible according to time schedule and all

controversial matters and all disputes arising out of

elections should be postponed till after the elections are

over, so that the election proceedings may not be unduly

retarded or protracted.

45

(2) In conformity with this principle, the scheme the

election law in this country as well as in England is that

no significance should be attached to anything which

does not affect the ‘election’; and if any irregularities are

committed while it is in progress and they belong to the

category or class which, under the law by which

elections are governed, would have the effect of vitiating

the ‘election’ and enable the person affected to call it in

question, they should be brought up before a Special

Tribunal by means of an election petition and not be

made the subject of a dispute before any court while the

election is in progress.”

(at pages 233, 234)

37. Leaving open what the powers of this court and the High Courts

under Articles 226, 227 and 136 are after an Election Tribunal decides

a dispute before it, this Court held:

“It should be mentioned here that the question as to what

the powers of the High Court under Articles 226 and 227

and of this court under Article 136 of the Constitution may

be, is one that will have to be decided on a proper

occasion.”

(at page 237)

38. What was left open in Ponnuswami’s case as to the powers of this

Court under Article 136 after an election tribunal had decided an

election petition before it was decided by this Court in Durga Shankar

Mehta v. Thakur Raghuraj Singh, (supra). This judgment described

the reach of the non-obstante clause contained in Article 329(b) as

follows:

46

“As has been said already, the non obstante clause in Article

329 prohibits challenge to an election either to Parliament or

any State Legislature, except in the manner laid down in

clause (2) of the article. But there is no prohibition of the

exercise of its powers by the Supreme Court in proper

cases under Article 136 of the Constitution against the

decision or determination of an Election Tribunal which like

all other Judicial Tribunals comes within the purview of the

article. It is certainly desirable that the decisions on matters

of disputed election should, as soon as possible, become

final and conclusive so that the constitution of the legislature

may be distinctly and speedily known. But the powers under

Article 136 are exercisable only under exceptional

circumstances. The article does not create any general right

of appeal from decisions of all tribunals. As regards the

decision of this court in Ponnuswami v. Returning Officer,

Namakkal Constituency [1952 SCR 218] to which reference

has been made by the learned counsel, we would only

desire to point out that all that this case decided was that

the High Court had no jurisdiction, under Article 226 of the

Constitution, to interfere by a writ of certiorari, with the order

of a Returning Officer who was alleged to have wrongly

rejected the nomination paper of a particular candidate. It

was held that the word “election” in Article 329(b) of the

Constitution had been used in the wide sense to connote

the entire process, culminating in a candidate's being

declared elected and that the scheme of Part XV of the

Constitution was that all matters which had the effect of

vitiating election should be brought up only after the election

was over and by way of an election petition. The particular

point, which arises for consideration here, was not decided

in that case and was expressly left open.”

(at pages 274,275)

39. Likewise, a discussion on the reach of Article 329(b) and Article 226

of the Constitution after an election petition has been decided by an

47

election tribunal was then discussed in Hari Vishnu Kamath v. Syed

Ahmad Ishaque, (supra):

“Now, the question is whether a writ is a proceeding in which

an election can properly be said to be called in question

within the meaning of Article 329(b). On a plain reading of

the article, what is prohibited therein is the initiation of

proceedings for setting aside an election otherwise than by

an election petition presented to such authority and in such

manner as provided therein. A suit for setting aside an

election would be barred under this provision. In N.P.

Ponnuswami v. Returning Officer, Namakkal Constituency

[1952 SCR 218] it was held by this court that the word

“election” in Article 329(b) was used in a comprehensive

sense as including the entire process of election

commencing with the issue of a notification and terminating

with the declaration of election of a candidate, and that an

application under Article 226 challenging the validity of any

of the acts forming part of that process would be barred.

These are instances of original proceedings calling in

question an election, and would be within the prohibition

enacted in Article 329(b). But when once proceedings have

been instituted in accordance with Article 329(b) by

presentation of an election petition, the requirements of that

article are fully satisfied. Thereafter when the election

petition is in due course heard by a tribunal and decided,

whether its decision is open to attack, and if so, where and

to what extent, must be determined by the general law

applicable to decisions of tribunals. There being no dispute

that they are subject to the supervisory jurisdiction of the

High Courts under Article 226, a writ of certiorari under that

article will be competent against decisions of the Election

Tribunals also.

The view that Article 329(b) is limited in its operation to

initiation of proceedings for setting aside an election and not

to the further stages following on the decision of the Tribunal

48

is considerably reinforced, when the question is considered

with reference to a candidate, whose election has been set

aside by the Tribunal. If he applies under Article 226 for a

writ to set aside the order of the Tribunal, he cannot in any

sense be said to call in question the election; on the other

hand, he seeks to maintain it. His application could not,

therefore, be barred by Article 329(b). And if the contention

of the first respondent is well-founded, the result will be that

proceedings under Article 226 will be competent in one

event and not in another and at the instance of one party

and not the other. Learned counsel for the first respondent

was unable to give any reason why this differentiation

should be made. We cannot accept a construction which

leads to results so anomalous.”

(at pages 1111,1112)

40. In Narayan Bhaskar Khare (Dr) v. Election Commission of India

(supra), a 7-Judge Bench dealt with elections to the President and the

Vice President of India contained under Article 71. The Court held:

“As already indicated, Article 71(1) confers jurisdiction and

power on this court to inquire into and decide “all doubts and

disputes arising out of or in connection with the election of a

President or Vice-President”. The question is: Is there in this

Article or in any other part of the Constitution or anywhere

else any indication as to the time when such inquiry is to be

held? In the first place, Article 71 postulates an “election of

the President or Vice-President” and provides for inquiry into

doubts and disputes arising out of or in connection with such

an election. What is the meaning to be given to the word

“election” as used in this Article? If we give to the word

“election” occurring in Article 71(1) the same wide meaning

as comprising the entire election process culminating in a

candidate being declared elected, then clearly the inquiry is

49

to be made after such completed election i.e. after a

candidate is declared to be elected as President or Vice-

President as the case may be. We see no reason why this

accepted meaning should not be given to the critical word.

In the second place, under clause 3 of Article 71, subject to

the provisions of this Constitution, Parliament may by law

regulate any matter “relating to or connected with the

election” of a President or Vice-President. The words here

also are similar to those used in Article 327 and are equally

wide enough to cover matters relating to or connected with

any stage of the entire election process. In exercise of

powers conferred on it by Article 71(3), Parliament has

enacted the Presidential and Vice-Presidential Election Act,

1952 (31 of 1952) to regulate certain matters relating to or

connected with elections to the office of President and Vice-

President of India. A glance through the provisions of this

Act will indicate that in the view of Parliament the time for

the exercise of jurisdiction by this court to inquire into and

decide doubts and disputes arising out of or in connection

with the Presidential election is after the entire election

process is completed.”

(at pages 1088,1089)

“The above stated interpretation appears to us to be in

consonance with the other provisions of the Constitution and

with good sense. If doubt or dispute arising out of or in

connection with the election of a President or Vice-President

can be brought before this court before the whole election

process is concluded then conceivably the entire election

may be held up till after the expiry of the five years' term

which will involve a non-compliance with the mandatory

provisions of Article 62. The well recognised principle of

election law, Indian and English, is that elections should not

be held up and that the person aggrieved should not be

permitted to ventilate his individual interest in derogation of

the general interest of the people, which requires that

elections should be gone through according to the time

50

schedule. It is, therefore, in consonance both with the

provisions of Article 62 and with good sense to hold that the

word “election” used in Article 71 means the entire process

of election. “

(at page 1090)

41. The judgment of Krishna Iyer,J. contained in Mohinder Singh Gill v.

Chief Election Commr. (supra), is of great importance and delineates

not only the parameters of Article 329(b) qua writ petitions filed under

Articles 226 and 227 of the Constitution of India but also speaks of the

powers of the Election Commission in supervising and conducting the

entire election process. This Court made a distinction between

challenges under Article 226 while the election process is on which

interfere with the progress of the election as against approaching a writ

court to accelerate the completion of the election and to act in

furtherance of the election. The Court put it thus:

“28. What emerges from this perspicacious reasoning, if we

may say so with great respect, is that any decision sought

and rendered will not amount to “calling in question” an

election if it subserves the progress of the election and

facilitates the completion of the election. We should not slur

over the quite essential observation “Anything done towards

the completion of the election proceeding can by no stretch

of reasoning be described as questioning the election.”

Likewise, it is fallacious to treat “a single step taken in

furtherance of an election” as equivalent to election.

51

29. Thus, there are two types of decisions, two types of

challenges. The first relates to proceedings which interfere

with the progress of the election. The second accelerates

the completion of the election and acts in furtherance of an

election. So, the short question before us, in the light of the

illumination derived from Ponnuswami is as to whether the

order for re-poll of the Chief Election Commissioner is

“anything done towards the completion of the election

proceeding” and whether the proceedings before the High

Court fecilitated the election process or halted its progress.

The question immediately arises as to whether the relief

sought in the writ petition by the present appellant amounted

to calling in question the election. This, in turn, revolves

round the point as to whether the cancellation of the poll and

the reordering of fresh poll is “part of election” and

challenging it is “calling it in question”.

30. The plenary bar of Article 329(b) rests on two principles:

(1) The peremptory urgency of prompt engineering of the

whole election process without intermediate interruptions by

way of legal proceedings challenging the steps and stages

in between the commencement and the conclusion. (2) The

provision of a special jurisdiction which can be invoked by

an aggrieved party at the end of the election excludes other

form, the right and remedy being creatures of statutes and

controlled by the Constitution. Durga Shankar Mehta has

affirmed this position and supplemented it by holding that,

once the Election Tribunal has decided, the prohibition is

extinguished and the Supreme Court's overall power to

interfere under Article 136 springs into action. In Hari Vishnu

this court upheld the rule in Ponnuswami excluding any

proceeding, including one under Article 226, during the on-

going process of election, understood in the comprehensive

sense of notification down to declaration. Beyond the

declaration comes the election petition, but beyond the

decision of the Tribunal the ban of Article 329(b) does not

bind.

52

xxx xxx xxx

34.…But what is banned is not anything whatsoever done or

directed by the Commissioner but everything he does or

directs in furtherance of the election, not contrarywise. For

example, after the President notifies the nation on the

holding of elections under Section 15 and the Commissioner

publishes the calendar for the poll under Section 30, if the

latter orders Returning Officers to accept only one

nomination or only those which come from one party as

distinguished from other parties or independents, is that

order immune from immediate attack. We think not.

Because the Commissioner is preventing an election, not

promoting it and the court's review of that order will facilitate

the flow, not stop the stream. Election, wide or narrow be its

connotation, means choice from a possible plurality,

monolithic politics not being our genius or reality, and if that

concept is crippled by the Commissioner's act, he holds no

election at all.”

42. Dealing with the power of the Election Commission under Article 324

of the Constitution and judicial review of such power, in an important

passage Krishna Iyer,J. stated:

“38. Article 324, which we have set out earlier, is a plenary

provision vesting the whole responsibility for national and

State elections and, therefore, the necessary powers to

discharge that function. It is true that Article 324 has to be

read in the light of the constitutional scheme and the 1950

Act and the 1951 Act. Sri Rao is right to the extent he insists

that if competent legislation is enacted as visualised in

Article 327 the Commission cannot shake itself free from the

enacted prescriptions. After all, as Mathew, J. has observed

in Indira Gandhi:

“In the opinion of some of the Judges constituting the

majority in Bharati's case [Kesavananda Bharati v. State

53

of Kerala, (1973) 4 SCC 225.] rule of law is a basic

structure of the Constitution apart from democracy.

The rule of law postulates the pervasiveness of the spirit

of law throughout the whole range of Government in the

sense of excluding arbitrary official action in any

sphere.”

And the supremacy of valid law over the Commission

argues itself. No one is an imperium in imperio in our

constitutional order. It is reasonable to hold that the

Commissioner cannot defy the law armed by Article 324.

Likewise, his functions are subject to the norms of fairness

and he cannot act arbitrarily. Unchecked power is alien to

our system.

39. Even so, situations may arise which enacted law has not

provided for. Legislators are not prophets but pragmatists.

So it is that the Constitution has made comprehensive

provision in Article 324 to take care of surprise situations.

That power itself has to be exercised, not mindlessly nor

mala fide, not arbitrarily nor with partiality but in keeping with

the guidelines of the rule of law and not stultifying the

Presidential notification nor existing legislation. More is not

necessary to specify; less is insufficient to leave unsaid.

Article 324, in our view, operates in areas left unoccupied by

legislation and the words “superintendence, direction and

control, as well as ‘conduct of all elections’, are the broadest

terms”. Myriad maybes, too mystic to be precisely presaged,

may call for prompt action to reach the goal of free and fair

election. It has been argued that this will create a

constitutional despot beyond the pale of accountability; a

Frankenstein's monster who may manipulate the system

into elected despotism — instances of such phenomena are

the tears of history. To that the retort may be that the judicial

branch, at the appropriate stage, with the potency of its

benignant power and within the leading strings of legal

guidelines, can call the bluff, quash the action and bring

order into the process.”

54

43. Finally, the court summarized its conclusions as follows:

“92. Diffusion, even more elaborate discussion, tends to blur

the precision of the conclusion in a judgment and so it is

meet that we synopsize the formulations. Of course, the

condensed statement we make is for convenience, not for

exclusion of the relevance or attenuation of the binding

impact of the detailed argumentation. For this limited

purpose, we set down our holdings:

“(1)(a)Article 329(b) is a blanket ban on litigative

challenges to electoral steps taken by the Election

Commission and its officers for carrying forward the

process of election to its culmination in the formal

declaration of the result.

(b)Election, in this context, has a very wide

connotation commencing from the Presidential

notification calling upon the electorate to elect and

culminating in the final declaration of the returned

candidate.

(2)(a)The Constitution contemplates a free and fair

election and vests comprehensive responsibilities of

superintendence, direction and control of the conduct of

elections in the Election Commission. This responsibility

may cover powers, duties and functions of many sorts,

administrative or other, depending on the circumstances.

(b)Two limitations at least are laid on its plenary

character in the exercise thereof. Firstly, when

Parliament or any State Legislature has made valid law

relating to or in connection with elections, the

Commission, shall act in conformity with, not in violation

of, such provisions but where such law is silent Article

324 is a reservoir of power to act for the avowed

purpose of, not divorced from, pushing forward a free

and fair election with expedition. Secondly, the

Commission shall be responsible to the rule of law, act

55

bona fide and be amenable to the norms of natural

justice insofar as conformance to such canons can

reasonably and realistically be required of it as fairplay-

in-action in a most important area of the constitutional

order viz. elections. Fairness does import an obligation

to see that no wrongdoer candidate benefits by his own

wrong. To put the matter beyond doubt, natural justice

enlivens and applies to the specific case of order for

total re-poll, although not in full panoply but in flexible

practicability. Whether it has been complied with is left

open for the Tribunal's adjudication.

(3)The conspectus of provisions bearing on the

subject of elections clearly expresses the rule that there

is a remedy for every wrong done during the election in

progress although it is postponed to the post-election

stage and procedure as predicated in Article 329(b) and

the 1951 Act. The Election Tribunal has, under the

various provisions of the Act, large enough powers to

give relief to an injured candidate if he makes out a case

and such processual amplitude of power extends to

directions to the Election Commission or other

appropriate agency to hold a poll, to bring up the ballots

or do other thing necessary for fulfilment of the

jurisdiction to undo illegality and injustice and do

complete justice within the parameters set by the

existing law.”

44. In Boddula Krishnaiah and Another v. State Election

Commissioner, A.P. & Ors., (1996) 3 SCC 416, a Gram Panchayat

election notification had been issued, subsequent to which the High

Court, by interim orders directed 94 persons to participate in the

election. By subsequent interim orders, the claims of various

56

respondents were to be ascertained, and ultimately, the Revenue

Divisional Officer found 20 persons to be eligible to be included in the

voters list, as a result of which the High Court directed that these

persons should be allowed to participate in the election. This Court

held:

“11. Thus, it would be clear that once an election process

has been set in motion, though the High Court may entertain

or may have already entertained a writ petition, it would not

be justified in interfering with the election process giving

direction to the election officer to stall the proceedings or to

conduct the election process afresh, in particular when

election has already been held in which the voters were

allegedly prevented from exercising their franchise. As seen,

that dispute is covered by an election dispute and remedy is

thus available at law for redressal.

12. Under these circumstances, we hold that the order

passed by the High Court is not correct in law in giving

direction not to declare the result of the election or to

conduct fresh poll for 20 persons, though the writ petition is

maintainable. The High Court, pending writ petition, would

not be justified in issuing direction to stall the election

process. It is made clear that though we have held that the

respondents are not entitled to the relief by interim order,

this order does not preclude any candidate including

defeated candidate from canvassing the correctness of the

election. They are free, as held earlier, to seek remedy by

way of an election petition as provided in the Act and the

Rules.”

45. In Election Commission of India v. Ashok Kumar (supra), a 3-

Judge Bench of this Court reviewed the entire case law relating to

57

Article 329(b) and Article 226 holding:

“28. Election disputes are not just private civil disputes

between two parties. Though there is an individual or a few

individuals arrayed as parties before the court but the stakes

of the constituency as a whole are on trial. Whichever way

the lis terminates it affects the fate of the constituency and

the citizens generally. A conscientious approach with

overriding consideration for welfare of the constituency and

strengthening the democracy is called for. Neither turning a

blind eye to the controversies which have arisen nor

assuming a role of overenthusiastic activist would do. The

two extremes have to be avoided in dealing with election

disputes.”

A useful summary of conclusions based on the case law was then set

out by the court as follows:

“31. The founding fathers of the Constitution have

consciously employed use of the words “no election shall be

called in question” in the body of Section 329(b) and these

words provide the determinative test for attracting

applicability of Article 329(b). If the petition presented to the

court “calls in question an election” the bar of Article 329(b)

is attracted. Else it is not.

32. For convenience’s sake we would now generally sum up

our conclusions by partly restating what the two Constitution

Benches have already said and then adding by clarifying

what follows therefrom in view of the analysis made by us

hereinabove:

(1)If an election, (the term election being widely interpreted so as

to include all steps and entire proceedings commencing from

the date of notification of election till the date of declaration of

result) is to be called in question and which questioning may

have the effect of interrupting, obstructing or protracting the

election proceedings in any manner, the invoking of judicial

58

remedy has to be postponed till after the completing of

proceedings in elections.

(2)Any decision sought and rendered will not amount to “calling

in question an election” if it subserves the progress of the

election and facilitates the completion of the election. Anything

done towards completing or in furtherance of the election

proceedings cannot be described as questioning the election.

(3)Subject to the above, the action taken or orders issued by

Election Commission are open to judicial review on the well-

settled parameters which enable judicial review of decisions of

statutory bodies such as on a case of mala fide or arbitrary

exercise of power being made out or the statutory body being

shown to have acted in breach of law.

(4)Without interrupting, obstructing or delaying the progress of

the election proceedings, judicial intervention is available if

assistance of the court has been sought for merely to correct

or smoothen the progress of the election proceedings, to

remove the obstacles therein, or to preserve a vital piece of

evidence if the same would be lost or destroyed or rendered

irretrievable by the time the results are declared and stage is

set for invoking the jurisdiction of the court.

(5)The court must be very circumspect and act with caution while

entertaining any election dispute though not hit by the bar of

Article 329(b) but brought to it during the pendency of election

proceedings. The court must guard against any attempt at

retarding, interrupting, protracting or stalling of the election

proceedings. Care has to be taken to see that there is no

attempt to utilise the court's indulgence by filing a petition

outwardly innocuous but essentially a subterfuge or pretext for

achieving an ulterior or hidden end. Needless to say that in

the very nature of the things the court would act with

reluctance and shall not act, except on a clear and strong

case for its intervention having been made out by raising the

pleas with particulars and precision and supporting the same

by necessary material.”

59

46. In Kurapati Maria Das v. Dr. Ambedkar Seva Samajan, (2009) 7

SCC 387, the validity of a caste certificate came up for determination in

a writ petition that was filed which challenged municipal elections made

to a reserved constituency. In this context, this court held:

“18. Regarding the bar of jurisdiction under Article 243-

ZG(b), learned counsel Shri Gagan Gupta submitted that

the decision relied upon by the High Court as K.

Venkatachalam v. A. Swamickan [(1999) 4 SCC 526] was

applicable and, therefore, it could not be said that there was

a bar to the entertainment of the writ petition under Article

226. Learned counsel supported the factual findings

recorded by the High Court to the effect that the appellant

was a Christian and, therefore, could not claim the status of

a person belonging to the Scheduled Caste, more

particularly, caste “Mala”.

19. In the first place, it would be better to consider as to

whether the bar under Article 243-ZG(b) is an absolute bar.

The article reads thus:

“243-ZG. (b) no election to any Municipality shall be

called in question except by an election petition

presented to such authority and in such manner as is

provided for by or under any law made by the legislature

of a State.”

At least from the language of clause (b), it is clear that the

bar is absolute. Normally, where such a bar is expressed in

a negative language as is the case here, it has to be held

that the tone of clause (b) is mandatory and the bar created

therein is absolute.

20. This Court in its recent decisions has held the bar to be

absolute. First such decision is Jaspal Singh Arora v. State

of M.P. [(1998) 9 SCC 594] In this case the election of the

60

petitioner as the President of the Municipal Council was

challenged by a writ petition under Article 226, which was

allowed setting aside the election of the petitioner. In para 3

of this judgment, the Court observed:

“3. … it is clear that the election could not be called in

question except by an election petition as provided

under that Act. The bar to interference by courts in

electoral matters contained in Article 243-ZG of the

Constitution was apparently overlooked by the High

Court in allowing the writ petition. Apart from the bar

under Article 243-ZG, on settled principles interference

under Article 226 of the Constitution for the purpose of

setting aside election to a municipality was not called for

because of the statutory provision for election

petition….”

21. The second such decision is Gurdeep Singh

Dhillon v. Satpal [(2006) 10 SCC 616]. In that decision, after

quoting Article 243-ZG(b) the Court observed that the

shortcut of filing the writ petition and invoking constitutional

jurisdiction of the High Court under Articles 226/227 was not

permissible and the only remedy available to challenge the

election was by raising the election dispute under the local

statute.

22. There is no dispute that Rule 1 of the Andhra Pradesh

Municipalities (Decision on Election Disputes) Rules, 1967,

specifically provides for challenging the election of

Councillor or Chairman. It was tried to be feebly argued that

this was a petition for quo warranto and not only for

challenging the election of the appellant herein. This

contention is clearly incorrect. When we see the writ petition

filed before the High Court, it clearly suggests that what is

challenged is the election. In fact the Prayer clauses (b) and

(c) are very clear to suggest that it is the election of the

appellant which is in challenge.”

47. In W.B. State Election Commission v. Communist Party of India

61

(Marxist) (supra), the West Bengal State Commission issued certain

directions extending the last date for submitting nominations by one

day, after which the said order was recalled on the next day. A learned

single Judge of the High Court delivered a judgment in which the order

cancelling the extension was quashed and the commission was

directed to issue a fresh notification extending the date for filing

nomination. In obedience to this order, the SEC issued a notification

extending the date for filing of nominations on 21.04.2018. Writ

petitions were then filed which were dismissed by a learned Single

Judge, who declined to interfere with the election process. Ultimately,

after fresh writ petitions were moved before a single Judge of the

Calcutta High Court, the single Judge declined to give any further

directions, more particularly, that the SEC be made to accept

nominations already filed in electronic forms. The Division Bench, while

disposing of the appeal, directed the SEC to accept nominations in

electronic forms by those candidates who had submitted them on or

before 3.00 p.m. on 23.04.2018. After setting out the relevant

provisions of the Panchayat Elections Act, this Court held:

“28. The Panchayat Elections Act is a complete code in

regard to the conduct of the poll and for the resolution of

62

disputes concerning the validity of the election. Article 243-K

entrusts the superintendence, direction and control over the

conduct of all elections to the panchayats in the State

Election Commission. Clause (b) of Article 243-O stipulates

thus:

“243-O. Bar to interference by courts in electoral

matters.—Notwithstanding anything in this Constitution

—

***

(b) no election to any Panchayat shall be called in

question except by an election petition presented to

such authority and in such manner as is provided for by

or under any law made by the legislature of a State.”

29. There is merit in the submission that the discipline which

is mandated by the provisions of the Constitution and

enforced by the enabling State law on the subject must be

maintained. Any dispute in regard to the validity of the

election has to be espoused by adopting a remedy which is

known to law, namely, through an election petition. It is at

the trial of an election petition that factual disputes can be

resolved on the basis of evidence. This principle has been

consistently adhered to in decisions of this court. In Boddula

Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC

416, a three-Judge Bench adverted to the decisions of the

Constitution Bench in N.P. Ponnuswami v. Returning Officer,

Namakkal Constituency, 1952 SCR 218 in Lakshmi Charan

Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689. After

referring to Ponnuswami, it was observed:

“8. In N.P. Ponnuswami v. Returning Officer, Namakkal

Constituency a Constitution Bench of this court had held

that having regard to the important functions which the

legislatures have to perform in democratic countries, it

has always been recognised to be a matter of first

importance that elections should be concluded as early

63

as possible according to time-schedule and all

controversial matters and all disputes arising out of

elections should be postponed till after the elections are

over so that the election proceedings may not be unduly

retarded or protracted. In conformity with the principle,

the scheme of the election law is that no significance

should be attached to anything which does not affect the

“election”; and if any irregularities are committed while it

is in progress and they belong to the category or class

which under the law by which elections are governed,

would have the effect of vitiating the “election”; and

enable the person affected to call it in question, they

should be brought up before a Special Tribunal by

means of an election petition and not be made the

subject of a dispute before any court while the election

is in progress.”

The binding principle must be followed.

xxx xxx xxx

33. For these reasons, we are of the view that challenges in

regard to the validity of the elections to the uncontested

seats in the panchayats, Panchayat Samitis and Zila

Parishads must also be pursued in election petitions under

Section 79(1) of the Panchayat Elections Act. We leave it

open to any person aggrieved to raise a dispute in the form

of an election petition in accordance with the provisions

contained in the Panchayat Elections Act. In exercise of the

power conferred by Article 142, we direct that the period of

30 days for filing election petitions in respect of the

uncontested seats shall commence from the date of the

publication of the results in the Official Gazette.”

48. A recent judgment of 3 learned Judges in Laxmibai v. Collector,

(supra), comes nearer home when it deals with municipal elections,

and holds as follows:

64

“42. This court again examined the question in respect of

raising a dispute relating to an election of a local body

before the High Court by way of a writ petition under Article

226 of the Constitution of India in a judgment reported as

Harnek Singh v. Charanjit Singh [Harnek Singh v. Charanjit

Singh, (2005) 8 SCC 383]. It was held as under:

“15. Prayers (b) and (c) aforementioned, evidently, could

not have been granted [Charanjit Singh v. State of

Punjab, 2003 SCC OnLine P&H 1226] in favour of the

petitioner by the High Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. It is true

that the High Court exercises a plenary jurisdiction

under Article 226 of the Constitution of India. Such

jurisdiction being discretionary in nature may not be

exercised inter alia keeping in view the fact that an

efficacious alternative remedy is available therefor. (See

Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.

(2005) 8 SCC 242 )

16. Article 243-O of the Constitution of India mandates

that all election disputes must be determined only by

way of an election petition. This by itself may not per se

bar judicial review which is the basic structure of the

Constitution, but ordinarily such jurisdiction would not be

exercised. There may be some cases where a writ

petition would be entertained but in this case we are not

concerned with the said question.

17. In C. Subrahmanyam [C. Subrahmanyam v. K.

Ramanjaneyullu, (1998) 8 SCC 703], a three-Judge

Bench of this court observed that a writ petition should

not be entertained when the main question which fell for

decision before the High Court was non-compliance with

the provisions of the Act which was one of the grounds

for an election petition in terms of Rule 12 framed under

the Act.”

65

43. Section 10-A of the 1959 Act and Section 9-A of the

1961 Act read with Articles 243-K and 243-O, are pari

materia with Article 324 of the Constitution of India. In view

of the judgments referred, we find that the remedy of an

aggrieved person accepting or rejecting nomination of a

candidate is by way of an election petition in view of the bar

created under Section 15-A of the 1959 Act. The said Act is

a complete code providing machinery for redressal to the

grievances pertaining to election as contained in Section 15

of the 1959 Act. The High Court though exercises

extraordinary jurisdiction under Article 226 of the

Constitution of India but such jurisdiction is discretionary in

nature and may not be exercised in view of the fact that an

efficacious alternative remedy is available and more so

exercise restraint in terms of Article 243-O of the

Constitution of India. Once alternate machinery is provided

by the statute, the recourse to writ jurisdiction is not an

appropriate remedy. It is a prudent discretion to be

exercised by the High Court not to interfere in the election

matters, especially after declaration of the results of the

elections but relegate the parties to the remedy

contemplated by the statute. In view of the above, the writ

petition should not have been entertained by the High Court.

However, the order of the High Court that the appellant has

not furnished the election expenses incurred on the date of

election does not warrant any interference.”

Powers of the State Election Commission under Article 243K r/w

243ZA

49. In Election Commission of India v. Shivaji, (supra), this court after

referring to Ponnuswami’s case then referred to the powers of the

Election Commission under Article 324 as follows:

66

“6. ………... If there was any such error committed in the

course of the election process the Election Commission had

the authority to set it right by virtue of power vested in it

under Article 324 of the Constitution as decided in Mohinder

Singh Gill v. Chief Election Commissioner [(1978) 1 SCC

405] and to see that the election process was completed in

a fair manner.”

50. Similarly, in Digvijay Mote v. Union of India, (1993) 4 SCC 175, this

court referred to the powers of the Election Commission under Article

324 of the Constitution as follows:

“8. The conduct of election is in the hands of the Election

Commission which has the power of superintendence,

direction and control of elections vested in it as per Article

324 of the Constitution. Consequently, if the Election

Commission is of the opinion that having regard to the

disturbed conditions of a State or a part thereof, free and fair

elections could not be held it may postpone the same.

Accordingly, on account of unsettled conditions, the

elections in the States of Assam & Jammu and Kashmir

could be postponed.

9. However, it has to be stated this power is not unbridled.

Judicial review will still be permissible, over the statutory

body exercising its functions affecting public law rights.

xxx xxx xxx

14. The resultant position is that it cannot be stated that the

exercise of power under Article 324 is not altogether

unreviewable. The review will depend upon the facts and

circumstances of each case.”

51. In Kishansing Tomar v. Municipal Corpn., Ahmedabad (supra), a

Constitution Bench of this Court clearly set out the powers of the State

67

Election Commissions under the Constitution as follows:

“22. In our opinion, the entire provision in the Constitution

was inserted to see that there should not be any delay in the

constitution of the new municipality every five years and in

order to avoid the mischief of delaying the process of

election and allowing the nominated bodies to continue, the

provisions have been suitably added to the Constitution. In

this direction, it is necessary for all the State Governments

to recognise the significance of the State Election

Commission, which is a constitutional body and it shall

abide by the directions of the Commission in the same

manner in which it follows the directions of the Election

Commission of India during the elections for Parliament and

the State Legislatures. In fact, in the domain of elections to

the panchayats and the municipal bodies under Part IX and

Part IX-A for the conduct of the elections to these bodies

they enjoy the same status as the Election Commission of

India.

23. In terms of Article 243-K and Article 243-ZA(1) the same

powers are vested in the State Election Commission as the

Election Commission of India under Article 324. The words

in the former provisions are in pari materia with the latter

provision.

24. The words, “superintendence, direction and control” as

well as “conduct of elections” have been held in the

“broadest of terms” by this court in several decisions

including Special Reference No. 1 of 2002, In re [Special

Reference No. 1 of 2002, In re, (2002) 8 SCC 237] and

Mohinder Singh Gill case [Mohinder Singh Gill v. Chief

Election Commr., (1978) 1 SCC 405] and the question is

whether this is equally relevant in respect of the powers of

the State Election Commission as well.

25. From a reading of the said provisions it is clear that the

powers of the State Election Commission in respect of

conduct of elections is no less than that of the Election

68

Commission of India in their respective domains. These

powers are, of course, subject to the law made by

Parliament or by the State Legislatures, provided the same

do not encroach upon the plenary powers of the said

Election Commissions.

26. The State Election Commissions are to function

independent of the State Governments concerned in the

matter of their powers of superintendence, direction and

control of all elections and preparation of electoral rolls for,

and the conduct of, all elections to the panchayats and

municipalities.

27. Article 243-K(3) also recognises the independent status

of the State Election Commission. It states that upon a

request made in that behalf the Governor shall make

available to the State Election Commission “such staff as

may be necessary for the discharge of the functions

conferred on the State Election Commission by clause (1)”.

It is accordingly to be noted that in the matter of the conduct

of elections, the Government concerned shall have to

render full assistance and cooperation to the State Election

Commission and respect the latter's assessment of the

needs in order to ensure that free and fair elections are

conducted.

28. Also, for the independent and effective functioning of the

State Election Commission, where it feels that it is not

receiving the cooperation of the State Government

concerned in discharging its constitutional obligation of

holding the elections to the panchayats or municipalities

within the time mandated in the Constitution, it will be open

to the State Election Commission to approach the High

Courts, in the first instance, and thereafter the Supreme

Court for a writ of mandamus or such other appropriate writ

directing the State Government concerned to provide all

necessary cooperation and assistance to the State Election

Commission to enable the latter to fulfil the constitutional

mandate.”

69

52. Given the fact that the scheme contained in Part XV is bodily lifted

into the provisions contained in Part IX-A, the powers exercised by the

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. As has been pointed out in Mohinder Singh Gill (supra) and the

aforesaid decisions, 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.

70

Bar contained in Articles 243ZG(a) / 329(a).

53. 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. In Lakshmi Charan

Sen v. A.K.M. Hassan Uzzaman (supra), Chandrachud,CJ. speaking

for the majority of a Constitution Bench of this court, held that the

delimitation process and the making of electoral rolls is independent of

the process of any particular election and thus held:

“27. …In Rampakavi Rayappa Belagali [(1970) 3 SCC 147] ,

it was held that the scheme of the Act of 1950 and the

amplitude of its provisions show that the entries made in an

electoral roll of a constituency can only be challenged in

accordance with the machinery provided by the Act and not

in any other manner or before any other forum unless, some

question of violation of the provisions of the Constitution is

involved. In Mohinder Singh Gill [(1978) 1 SCC 405],

Krishna Iyer, J., speaking for the Constitution Bench, has

considered at great length the scope and meaning of Article

329(b) of the Constitution. Describing that article as the

“Great Wall of China”, the learned Judge posed the question

whether it is so impregnable that it cannot be bypassed

even by Article 226. Observing that “every step from start to

finish of the total process constitutes ‘election’, not merely

the conclusion or culmination”, the judgment concludes

thus:

71

“The rainbow of operations, covered by the

compendious expression ‘election’, thus commences

from the initial notification and culminates in the

declaration of the return of a candidate.”

28. We have expressed the view that preparation and

revision of electoral rolls is a continuous process, not

connected with any particular election. It may be difficult,

consistently with that view, to hold that preparation and

revision of electoral rolls is a part of the “election” within the

meaning of Article 329(b). Perhaps, as stated in Halsbury in

the passage extracted in Ponnuswami [AIR 1952 SC 64],

the facts of each individual case may have to be considered

for determining the question whether any particular stage

can be said to be a part of the election process in that case.

In that event, it would be difficult to formulate a proposition

which will apply to all cases alike.”

54. This judgment was followed by another Constitution Bench in Indrajit

Barua v. Election Commission of India (supra), the Court holding:

“12. …We are not prepared to take the view that preparation

of electoral rolls is also a process of election. We find

support for our view from the observations of Chandrachud,

C.J. in Lakshmi Charan Sen case [AIR 1957 SC 304] that “it

may be difficult, consistently with that view, to hold that

preparation and revision of electoral roll, is a part of

‘election’ within the meaning of Article 329(b)”. In a suitable

case challenge to the electoral roll for not complying with the

requirements of the law may be entertained subject to the

rule indicated in Ponnuswami case [(1985) 4 SCC 689] . But

the election of a candidate is not open to challenge on the

score of the electoral roll being defective. Holding the

election to the Legislature and holding them according to

law are both matters of paramount importance. Such

elections have to be held also in accordance with a time

bound programme contemplated in the Constitution and the

72

Act. The proviso added in Section 22(2) of the Act of 1950 is

intended to extend cover to the electoral rolls in

eventualities which otherwise might have interfered with the

smooth working of the programme. These are the reasons

for which we came to the conclusion that the electoral roll of

1979 had not been vitiated and was not open to be attacked

as invalid.”

55. In Meghraj Kothari v. Delimitation Commission (supra), this court

dealt with Sections 8, 9 and 10 of the Delimitation Commission Act,

1962, and the bar contained in Article 329(a) as follows:

“In this case we are not, faced with that difficulty because

the Constitution itself provides under Article 329(a) that any

law relating to the delimitation of constituencies etc. made or

purporting to be made under Article 327 shall not be called

in question in any court. Therefore an order under Section 8

or 9 and published under Section 10(1) would not be saved

merely because of the use of the expression “shall not be

called in question in any court”. But if by the publication of

the order in the Gazette of India it is to be treated as law

made under Article 327, Article 329 would prevent any

investigation by any court of law.”

(at page 408)

xxx xxx xxx

“In our view, therefore, the objection to the delimitation of

constituencies could only be entertained by the Commission

before the date specified. Once the orders made by the

Commission under Sections 8 and 9 were published in the

Gazette of India and in the Official Gazettes of the States

concerned, these matters could no longer be reagitated in a

court of law. There seems to be very good reason behind

such a provision. If the orders made under Sections 8 and 9

were not to be treated as final, the effect would be that any

73

voter, if he so wished, could hold up an election indefinitely

by questioning the delimitation of the constituencies from

court to court. Section 10(2) of the Act clearly demonstrates

the intention of the Legislature that the orders under

Sections 8 and 9 published under Section 10(1) were to be

treated as law which was not to be questioned in any court.

It is true that an order under Section 8 or 9 published under

Section 10(1) is not part of an Act of Parliament, but its

effect is to be the same.”

(at pages 410,411)

xxx xxx xxx

“In the instant case the provision of Section 10(4) of the Act

puts orders under Sections 8 and 9 as published under

Section 10(1) in the same street as a law made by

Parliament itself which, as we have already said, could only

be done under Article 327, and consequently the objection

that the notification was not to be treated as law cannot be

given effect to.”

(at page 415)

56. This judgment was followed in Assn. of Residents of Mhow (ROM)

v. Delimitation Commission of India, (2009) 5 SCC 404, which dealt

with Sections 9 and 10 of the Delimitation Act, 2002. The Court held:

“35. This court in Pradhan [1995 Supp (2) SCC 305] was not

considering any similar issue as the one that has arisen for

our consideration in the present case. This court did not

take any view that the proposals in respect of each

constituency shall have to be treated as an independent

proposal and the Commission's power to determine

delimitation of the constituencies is with reference to each

constituency. The objections and/or suggestions, as the

case may be, are required to be taken into consideration

74

treating the proposals as for the whole of the State and

delimitation of the constituencies with reference to a State

as a unit.

36. In Meghraj Kothari v. Delimitation Commission [(1967) 1

SCR 400] a Constitution Bench of this court while

interpreting Sections 8, 9 and 10 of the Delimitation

Commission Act, 1962 which are in pari materia with the

provisions of the present Act, observed:

“19. In our view, therefore, the objection to the

delimitation of constituencies could only be entertained

by the Commission before the date specified. Once the

orders made by the Commission under Sections 8 and 9

were published in the Gazette of India and in the Official

Gazettes of the States concerned, these matters could

no longer be reagitated in a court of law. There seems to

be very good reason behind such a provision. If the

orders made under Sections 8 and 9 were not to be

treated as final, the effect would be that any voter, if he

so wished, could hold up an election indefinitely by

questioning the delimitation of the constituencies from

court to court. Section 10(2) of the Act clearly

demonstrates the intention of the legislature that the

orders under Sections 8 and 9 published under Section

10(1) were to be treated as law which was not to be

questioned in any court.

20. It is true that an order under Section 8 or 9 published

under Section 10(1) is not part of an Act of Parliament,

but its effect is to be the same.”

37. The Constitution Bench went to the extent of saying that:

(Meghraj Kothari case [(1967) 1 SCR 400]

“18. An examination of Sections 8 and 9 of the Act

shows that the matters therein dealt with were not to be

subject to the scrutiny of any court of law. …

***

75

32. … the provision of Section 10(4) of the Act puts

orders under Sections 8 and 9 as published under

Section 10(1) in the same street as a law made by

Parliament itself which, … could only be done under

Article 327, and consequently the objection that the

notification was not to be treated as law cannot be given

effect to.”

Conclusion

38. In the present case, the Commission finally determined

the delimitation of parliamentary constituencies in the State

of Madhya Pradesh after considering all the objections and

suggestions received by it before the specified date and got

published its orders in the Gazette of India and in the Official

Gazette of the State as is required under Section 10(1) of

the Act. The orders so published puts them “in the same

street as a law made by Parliament itself”. Consequently

that notification is to be treated as law and required to be

given effect to.”

57. In Rampakavi Rayappa Belagali v. B.D. Jatti, (1970) 3 SCC 147,

the Court dealt with the scheme of the Representation of People Act,

1950 and its inter-relation with Article 329(a) as follows:

“7. …The entire scheme of the Act of 1950 and the

amplitude of its provisions show that the entries made in an

Electoral Roll of a constituency can only be challenged in

accordance with the machinery provided by it and not in any

other manner or before any other forum unless some

question of violation of the provisions of the Constitution is

involved. …..

8. The other provisions relating to election are contained in

Part XV of the Constitution. Article 324 deals with the

superintendence, direction and control of elections which

are vested in the Election Commission. Article 325 declares

76

that no person shall be ineligible for inclusion in an Electoral

Roll on account only of religion, race, caste, sex or any of

them. Article 326 says that the elections to the House of

People and the Legislative Assemblies of State shall be on

the basis of adult franchise. Article 327 gives power to the

Parliament to make provisions with respect to elections to

Legislatures. Article 329 bars the interference of courts in

electoral matters. By virtue of that Article no election shall be

called in question except by an election petition. It is

abundantly clear that in the present case the question

whether Respondent 1 was ordinarily resident in Jamkhandi

Constituency during the material period and was entitled to

be registered in the Electoral Roll could not be the subject-

matter of enquiry except in accordance with the provisions

of the Act of 1950. The grounds on which the election can

be declared to be void under the Act are set out in Section

100 of the Act. Clause (d) is “that the result of the election,

insofar as it concerns a returned candidate, has been

materially affected—(2) ……………… (i)……..

….................... (ii) .................................. (iii) ……………..

(iv) by any non-compliance with the provisions of the

Constitution or of this Act or of any rules or orders made

under this Act”. Nothing could be clearer than the ambit of

this provision. It does not entitle the court in an election

petition to set aside any election on the ground of non-

compliance with the provisions of the Act of 1950 or of any

rules made thereunder with the exception of Section 16.”

58. However, in State of U.P. v. Pradhan Sangh Kshettra Samiti, 1995

Supp (2) SCC 305, a division bench of this Court delineated the scope

of interference so far as delimitation of Panchayat areas is concerned,

as follows:

“44. It is for the Government to decide in what manner the

panchayat areas and the constituencies in each panchayat

77

area will be delimited. It is not for the court to dictate the

manner in which the same would be done. So long as the

panchayat areas and the constituencies are delimited in

conformity with the constitutional provisions or without

committing a breach thereof, the courts cannot interfere with

the same. xxx

45. What is more objectionable in the approach of the High

court is that although clause (a) of Article 243-O of the

Constitution enacts a bar on the interference by the courts in

electoral matters including the questioning of the validity of

any law relating to the delimitation of the constituencies or

the allotment of seats to such constituencies made or

purported to be made under Article 243-K and the election

to any panchayat, the High Court has gone into the question

of the validity of the delimitation of the constituencies and

also the allotment of seats to them. We may, in this

connection, refer to a decision of this court in Meghraj

Kothari v. Delimitation Commission [(1967) 1 SCR 400]. In

that case, a notification of the Delimitation Commission

whereby a city which had been a general constituency was

notified as reserved for the Scheduled Castes. This was

challenged on the ground that the petitioner had a right to

be a candidate for Parliament from the said constituency

which had been taken away. This court held that the

impugned notification was a law relating to the delimitation

of the constituencies or the allotment of seats to such

constituencies made under Article 327 of the Constitution,

and that an examination of Sections 8 and 9 of the

Delimitation Commission Act showed that the matters

therein dealt with were not subject to the scrutiny of any

court of law. There was a very good reason for such a

provision because if the orders made under Sections 8 and

9 were not to be treated as final, the result would be that

any voter, if he so wished, could hold up an election

indefinitely by questioning the delimitation of the

constituencies from court to court. Although an order under

Section 8 or Section 9 of the Delimitation Commission Act

78

and published under Section 10(1) of that Act is not part of

an Act of Parliament, its effect is the same. Section 10(4) of

that Act puts such an order in the same position as a law

made by Parliament itself which could only be made by it

under Article 327. If we read Articles 243-C, 243-K and 243-

O in place of Article 327 and Sections 2(kk), 11-F and 12-BB

of the Act in place of Sections 8 and 9 of the Delimitation

Act, 1950, it will be obvious that neither the delimitation of

the panchayat area nor of the constituencies in the said

areas and the allotments of seats to the constituencies

could have been challenged nor the court could have

entertained such challenge except on the ground that before

the delimitation, no objections were invited and no hearing

was given. Even this challenge could not have been

entertained after the notification for holding the elections

was issued. The High Court not only entertained the

challenge but has also gone into the merits of the alleged

grievances although the challenge was made after the

notification for the election was issued on 31-8-1994.”

59. The judgment in Anugrah Narain Singh v. State of U.P., (1996) 6

SCC 303 is instructive in that it deals with a local law namely the U.P.

Nagar Maha Palika Adhiniyam, 1959, in the context of challenges

made to orders under that Act. Meghraj’s case was distinguished by

this court as follows:

“24. The validity of Sections 6-A, 31, 32 and 33 of the U.P.

Act dealing with delimitation of wards cannot be questioned

in a court of law because of the express bar imposed by

Article 243-ZG of the Constitution. Section 7 contains rules

for allotment of seats to the Scheduled Castes, the

Scheduled Tribes and the Backward Class people. The

validity of that section cannot also be challenged. That

apart, in the instant case, when the delimitation of the wards

79

was made, such delimitation was not challenged on the

ground of colourable exercise of power or on any other

ground of arbitrariness. Any such challenge should have

been made as soon as the final order was published in the

Gazette after objections to the draft order were considered

and not after the notification for holding of the elections was

issued. As was pointed out in Lakshmi Charan Sen case

[(1985) 4 SCC 689], that the fact that certain claims and

objections had not been disposed of before the final order

was passed, cannot arrest the process of election.

25. In this connection, it may be necessary to mention that

there is one feature to be found in the Delimitation

Commission Act, 1962 which is absent in the U.P. Act.

Section 10 of the Act of 1962 provided that the Commission

shall cause each of its order made under Sections 8 and 9

to be published in the Gazette of India and in the Official

Gazettes of the States concerned. Upon publication in the

Gazette of India every such order shall have the force of law

and shall not be called in question in any court. Because of

these specific provisions of the Delimitation Commission

Act, 1962, in the case of Meghraj Kothari v. Delimitation

Commission [AIR 1967 SC 669] , this court held that

notification of orders passed under Sections 8 and 9 of that

Act had the force of law and therefore, could not be assailed

in any court of law because of the bar imposed by Article

329. The U.P. Act of 1959, however, merely provides that

the draft order of delimitation of municipal areas shall be

published in the Official Gazette for objections for a period

of not less than seven days. The draft order may be altered

or modified after hearing the objections filed, if any.

Thereupon, it shall become final. It does not lay down that

such an order upon reaching finality will have the force of

law and shall not be questioned in any court of law. For this

reason, it may not be possible to say that such an order

made under Section 32 of the U.P. Act has the force of law

and is beyond challenge by virtue of Article 243-ZG. But any

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such challenge should be made soon after the final order is

published…”

60. In Dravida Munnetra Kazhagam v. State of T.N. (supra), this Court

dealt with certain interlocutory applications that were filed seeking

directions for compliance with the constitutional mandate concerning

elections to local bodies. This Court dealt with contentions raised by

the parties before it as follows:

“10. It, thus, emerges that before the election process could

begin as per the State Election Commission's Press

Release dated 2-12-2019, the State of Tamil Nadu

increased the number of districts from 31 to 39 and also

restructured various talukas. However, with regard to posts

of Chairman and Vice-Chairman of District Panchayat

Councils, elections are still sought to be held only for 31

posts. This resultant incongruity has prompted the

appellants to file these applications with prayers to strike

down the Notification dated 2-12-2019; hold elections for the

entire State comprising all 39 revenue districts; and conduct

such local body elections only after completion of all legal

formalities i.e. after delimitation of the newly carved districts.

A specific direction has also been prayed for, to compel the

respondents to first carry out delimitation, reservation,

rotation processes and fulfil all other legal requirements

before notifying or conducting elections of any panchayat at

the village, intermediate or district level.

11. Having heard the learned counsel for the parties at a

considerable length and after an in-depth analysis of various

statutory provisions as well as the constitutional scheme

under Part IX which envisages democratisation of grass-root

level administration, we are of the view that, as per Article

243-B, panchayats have to mandatorily be constituted in a

81

State at the village, intermediate and district levels. Article

243-C requires the State, as far as is practicable, to

maintain a similar ratio between the population residing

within the territory of a particular panchayat and the number

of seats allocated to it, across all panchayats in the State.

Further, each panchayat must be divided into territorial

constituencies and per Article 243-D, seats in proportion to

their population must be reserved for Scheduled Castes and

Scheduled Tribes in each panchayat.

12. It is, thus, clear that the constitutional object of Part IX

cannot be effectively achieved unless the delimitation

exercise for constitution of local bodies at all levels is

properly undertaken. Such exercise in the State of Tamil

Nadu must keep in view the criteria for delimitation of wards

prescribed under the Tamil Nadu Local Bodies Delimitation

Regulations, 2017 (formulated under the Tamil Nadu

Delimitation Commission Act, 2017), which criteria must

itself not be contrary to Article 243-C read with Article 243-

B(1) of the Constitution.

13. Noticing how at the completion of the delimitation

process there were only 31 revenue districts, but despite a

subsequent increase in number of districts to 39, no fresh

delimitation exercise has been undertaken, it is clear that

the State Government cannot fulfil the aforestated

constitutional mandate. There is no identified data

elucidating population proportions and, hence, requisite

reservation for Scheduled Castes and Scheduled Tribes

cannot be provided for, both in re village panchayat wards or

Chairman/Vice-Chairman of District bodies. We, hence,

have no doubt that the election process as notified by the

State Election Commission on 2-12-2019, in respect of the

newly constituted nine districts cannot be held unless fresh

delimitation exercise in respect thereto is first completed.

The State Government cannot justify holding local body

elections of these nine districts by relying upon this Court's

order dated 18-11-2019 [C.R. Jayasukin v. T.N. State

82

Election Commission, 2019 SCC OnLine SC 1664] as the

said order itself mandates notification of elections only after

completing “all legal formalities”.

14. The contention of the respondents that the present

proceedings amount to “calling in question an election” and

hence not being maintainable in view of the express

constitutional embargos of Articles 243-O and 243-ZG does

not impress us for the present proceedings are only to

further the expeditious completion of prerequisites of a fair

election. Hence, the following ratio of a coordinate Bench

in Election Commission of India v. Ashok Kumar, (2000) 8

SCC 216 squarely applies to the present case:

“32. … (2) Any decision sought and rendered will not

amount to “calling in question an election” if it subserves

the progress of the election and facilitates the

completion of the election. Anything done towards

completing or in furtherance of the election proceedings

cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders

issued by Election Commission are open to judicial

review on the well-settled parameters which enable

judicial review of decisions of statutory bodies such as

on a case of mala fide or arbitrary exercise of power

being made out or the statutory body been shown to

have acted in breach of law.

(4) Without interrupting, obstructing or delaying the

progress of the election proceedings, judicial

intervention is available if assistance of the court has

been sought for merely to correct or smoothen the

progress of the election proceedings, to remove the

obstacles therein, or to preserve a vital piece of

evidence if the same would be lost or destroyed or

rendered irretrievable by the time the results are

declared and stage is set for invoking the jurisdiction of

the court.”

83

61. Accordingly, directions were issued ordering the respondents,

including the Delimitation Commission, to delimit 9 newly constituted

districts in accordance with law and only thereafter hold elections for

their Panchayats at the village, intermediate and district levels within a

period of 4 months.

62. Shri Tushar Mehta, learned Solicitor General has exhorted us to hold

that this judgment is per incuriam in that it flies in the face of the earlier

decisions of this Court. We find nothing in this judgment as flying in the

face of the earlier judgments of this court. On the contrary, the Court

extracts the ratio in Ashok Kumar’s case (supra) and thereafter

issues directions to the authorities concerned.

63. A conspectus of the aforesaid 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

84

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 non-obstante

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

85

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.

86

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 as delineated above, can also be challenged in

the manner provided by the statutory provisions dealing with

87

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, as is provided in proposition (IV) above. 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.

64. Applying the law to the facts of the present case, the first important

thing to be noted is that the constitutional bar contained in Article

243ZG(a) does not apply to the facts of this case. As has correctly

been pointed out by Shri Laud, the judgment in Anugrah Narain

Singh v. State of U.P. (supra) would apply as the Goa Municipalities

Act does not contain any provision akin to Section 10(2) or 10(4) of the

Delimitation Commission Act, 1962 that was highlighted in Meghraj’s

case (supra), providing that orders of the Delimitation Commission

88

have the force of law. This being the case, the first and foremost

roadblock that has been put forward by the learned Solicitor General

has been cleared. 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. On merits, it is

important to note that Shri Tushar Mehta, learned Solicitor General, did

not advance any argument 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, we do not find 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.

65. However, there can be no doubt that Shri Tushar Mehta is right in

89

stating that 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 therefore, 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.

66. However, on the peculiar facts of these cases, 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, it is important to note that 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)It is important to note that 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

90

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 (supra) and Sujay S.

Lotlikar’s case (supra), 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

91

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 present cases were filed between 9

th

and 12

th

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 aforesaid 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

92

Commissioner, who is none other than the Law Secretary of the

State of Goa, issues 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, which commences hearing the writ

petitions at 9.00 a.m.

1

(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,

1

It is well settled that actions of the State with oblique or indirect object will be

attributed to “malice in law”. This Court in Kalabharati Advertising v. Hemant Vimalnath

Narichania & Ors (2010) 9 SCC 437 has summarised this as follows:

“25. The State is under obligation to act fairly without ill will or malice— in fact or in law.

“Legal malice” or “malice in law” means something done without lawful excuse. It is an act

done wrongfully and wilfully without reasonable or probable cause, and not necessarily an

act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others.

Where malice is attributed to the State, it can never be a case of personal ill will or spite on

the part of the State. It is an act which is taken with an oblique or indirect object. It means

exercise of statutory power for “purposes foreign to those for which it is in law intended”. It

means conscious violation of the law to the prejudice of another, a depraved inclination on

the part of the authority to disregard the rights of others, which intent is manifested by its

injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521], S.R.

Venkataraman v. Union of India [(1979) 2 SCC 491], State of A.P. v. Goverdhanlal Pitti

[(2003) 4 SCC 739], BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip

Kumar Ray [(2007) 14 SCC 568])”

93

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.

67. Given the aforesaid, the order of the High Court contained in

paragraph 81 of the impugned judgment 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 “15

th

April”

occurring in paragraph 81(e), the words “30

th

April” be substituted. All

the other directions will remain undisturbed.

68. 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

94

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, in our view, a

mockery of the constitutional mandate. We therefore declare 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

95

persons to this high constitutional office. The directions contained in

this paragraph 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.

69. The appeals are disposed of accordingly.

Writ Petition (Civil) No. 309/2021

1. This writ petition 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.

2. Given our judgment in the aforesaid appeals, 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.

………………….......................J.

[ ROHINTON FALI NARIMAN ]

………………….......................J.

[ B.R. GAVAI ]

………………….......................J.

[ HRISHIKESH ROY ]

New Delhi;

March 12

th

, 2021.

96