2007 Supreme(Bom) 1722

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.B. Bhosale and N.A. Britto, JJ.
NARESH KRISHNA GAUNEKAR and others - Petitioners.
vs.
STATE OF GOA and others - Respondents.
W. P. Nos. 538, 554 of 2007, 426 of 2006 along with Misc. Civil Appln. Nos. 862,870,874,858 of 2007
Decided on: 18-12-2007.

Headnote:Constitution of India, 1950 - Articles 243 and 243-U-Goa Municipalities Act, 1968, Section 9 (Amended in 2007)-Goa Municipality (Election) Rules, 1969, Rule 4-Non-availability of complete reservation roll of OBC and SC/ST-Further time required for completion-Writ petition-Postponement of election, writ petition stands dismissed.-Article 243-U(3) of the Constitution mandates that an election to constitute a Municipality must be completed before the expiry of its duration of five years from the date appointed for its first meeting and the new body shall be constituted before expiration of the term of outgoing Council and in any case within six months from such date of expiration of the term of outgoing Council. The State Election Commission is not expected to put forward any case based on unreasonable ground that elections could not be completed in time. Any revision of electoral rolls shall be carried out in time and if it cannot be carried out within a reasonable time election has to be conducted on the basis of the then existing electoral rolls. The Election Commission shall complete the election before the expiration of the duration of five years’ period as stipulated in Clause 3 of Article 243-U and not yield to a situation that may be created by vested interests to postpone the elections from being held within the stipulated time. The entire provision in the constitution was inserted to see that there should not be any delay in the Constitution of a new Municipality every five years, and in order to avoid the mischief of delaying process of election and allowing the nominated bodies/administrator to continue, the provisions have been suitably added to the Constitution. A distinction is made between a man-made situation and the act of God. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervising impossibility caused by the act of God. However, if the situation is "created" not by the act of God and if elections do not take place that certainly would be against the scheme of the Constitution. Any man-made situation, created deliberately or otherwise, obstructs a free and fair election cannot be tolerated and need to be dealt with sternly and should not normally be a ground for postponing elections beyond six months period, either from dissolution of the Council or expiration of its term or for that matter from the date of constitution of a new Council.

       It empowers the State Legislature to reserve or not to reserve seats in favour of backward class of citizens. Thus, it is optional for the State Legislature and not mandatory to make a law in terms of Article 243-T(6). Under no circumstances, therefore the reservation of seats in favour of OBCs pursuant to the provisions of Section 9 of the Municipalities Act can be characterized as "constitutional mandate".

       The Election Commission was required to take steps for holding elections on the basis of the then existing electoral rolls and the other data, as was available then. But in the present case, none of the respondents acted in the manner in which they ought to have in the face of the constitutional mandate. Initially PMC’s elections were postponed on the aforementioned grounds and then on the ground that there is an amendment of Section 9 of the Municipalities Act which mandates reservation of seats for OBCs. The Court, while dealing with Writ Petition No. 426 of 2006, at the stage of admission, instead of entering into the questions, as raised now, had once granted them an opportunity to hold elections and complete the entire process within six months, that is, by December, 2007. As observed earlier, the pace with which the Government moved during this six months, Court has its own doubt whether the Election Commission would be able to conduct the elections for another six months.

       The provisions of Article 243-ZG also cannot be overlooked which bar interference by the Courts in electoral matters. It is true that Article 243-ZG does not oust jurisdiction of the High Court under Article 226 of the Constitution of India ever then Article 226 ought not to be exercised in electoral matters or when the elections are imminent.

       If the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because some one or the other will always find some excuse to move the Court and stall the elections as observed by the Supreme Court in that case. In other words, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which in its writ jurisdiction is invoked.

       Constitution of India - Articles 226, 227, 243-T and 243-U-Writ of mandamus to reserve seats for the other Backward Committees in Municipal Councils in State of Goa-Reservation should be made before Municipal Council Election-Petitioner being Nabhik and Bhandari Naik Communities in list of OBC-Filing of writ by Elected Councillor -Petitioner belong to OBC-Direction sought to hold election to PMC within specified time schedule and opposed postponement of election-Question to decide prayer made in W.P. No. 538/07, and Misc. Civil Application No. 858/07 in W.P. No. 426/06-Contention of petitioner that Article 243-T attached to institutions of Local Self Government-Reservation of OBC in power of State-Constitutional protection to State to provide for reservation for OBCs-Law in Goa has constitutional protection-Reservation of seat by amendment of provision of Section 9 of Municipalities Act-Reservation of OBC in proportion to population within municipal areas-Time limit for holding election elapsed contested by petitioner- Failure of State Election Commission contended-Since 2001 census is in place, impossible to make reservation on afore-mentioned census-OBCs belong to creamy layer, exclusion for reservation proper as held by Apex Court-Contention of Advocate General that in absence of proper data of population figures of SC, ST and OBC within the municipal areas, no proper reservation could be made-No representation be made to newly elected Councils-Election Commission to carry out mandate of Constitution-No delay should be followed for election after expiry of five years-Non-availability of accurate figures of ST result in non-fulfilment of mandate under Article 243-T and Section 9of Municipalities Act-Survey by committee for Backward Classes not illegal-Election held basis of data in report no violation of the mandate under Article 243-T of Constitution-Provisions of law cannot be elevated to the status of constitutional mandate-Implementation of Goa Municipalities (Amendment) Act would be subversive-Election Commission to carry out mandate of Constitution and to hold election-Article 226 ought not to be exercised in electora matters or when the elections are imminent-Direction to Election Commission to initiate election process-Petition disposed of.