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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT GOA
M.S. Sonak, Bharati Dangre, JJ.
Romaldo Fernandes - Appellant
Versus
State Of Goa - Respondent
Writ Petition No. 85 of 2021, 86 of 2021, 87 of 2021, 88 of 2021, 90 of 2021, 91 of 2021, 515 of 2021, 524 of 2021, 525 of 2021
Decided On : 01-03-2021
The High Court quashed the impugned order issued by the Director of Municipal Administration/Urban Development, Goa, determining the reservation of seats in different wards of 11 Municipal Councils in the State of Goa, for the purpose of ensuing Municipal elections, on the grounds that it violated the constitutional mandate of reserving not less than one-third of the total number of seats for women and the statutory mandate of having regard to the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation. The Court directed the Director to issue a fresh notification within 10 days, ensuring reservation for women of not less than one-third of the total number of seats reserved for direct elections to the Municipal Councils and to give due weightage to the observations made in the judgment while exercising the power afresh. The Court also directed the State Election Commission to expeditiously notify the election programme and align the schedule of election in a manner to ensure its completion by or before 15th April 2021.
Fact of the Case:
The Director of Municipal Administration/Urban Development, Goa, issued an impugned order determining the reservation of seats in different wards of 11 Municipal Councils in the State of Goa, for the purpose of ensuing Municipal elections. Several writ petitions were filed challenging the impugned order on the grounds that it violated the constitutional mandate of reserving not less than one-third of the total number of seats for women and the statutory mandate of having regard to the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation.
Finding of the Court:
The High Court found that the impugned order violated the constitutional mandate of reserving not less than one-third of the total number of seats for women and the statutory mandate of having regard to the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation. The Court noted that the Director had failed to provide reservation of not less than one-third of the total number of seats in favour of women, which is a constitutional and statutory requirement. The Court also found that the Director had not taken into account the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation, which is a statutory requirement.
Issues: Whether the impugned order issued by the Director of Municipal Administration/Urban Development, Goa, determining the reservation of seats in different wards of 11 Municipal Councils in the State of Goa, for the purpose of ensuing Municipal elections, violated the constitutional mandate of reserving not less than one-third of the total number of seats for women and the statutory mandate of having regard to the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation.
Ratio Decidendi: The High Court held that the impugned order violated the constitutional mandate of reserving not less than one-third of the total number of seats for women and the statutory mandate of having regard to the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation. The Court noted that the Director had failed to provide reservation of not less than one-third of the total number of seats in favour of women, which is a constitutional and statutory requirement. The Court also found that the Director had not taken into account the concentration of population of SCs, STs, and OBCs in any particular ward while making the reservation, which is a statutory requirement.
Final Decision: The High Court quashed the impugned order issued by the Director of Municipal Administration/Urban Development, Goa, determining the reservation of seats in different wards of 11 Municipal Councils in the State of Goa, for the purpose of ensuing Municipal elections. The Court directed the Director to issue a fresh notification within 10 days, ensuring reservation for women of not less than one-third of the total number of seats reserved for direct elections to the Municipal Councils and to give due weightage to the observations made in the judgment while exercising the power afresh. The Court also directed the State Election Commission to expeditiously notify the election programme and align the schedule of election in a manner to ensure its completion by or before 15th April 2021.
JUDGMENT
Bharati Dangre, J. - Elections are the central institution of democratic representative governance, since in the democratic setup, the authority of the Government derives solely from the concept of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections. Democratically elected nations burgeon on absolutely free and impartial elections and India being a colossal democracy demands such a process.
2. The Constitution Bench of the Apex Court in the celebrated case of 'Mohinder Singh Gill' has expressed a word of caution while entertaining any dispute involving and revolving around 'Election'. "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 constituencies as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens in general. A conscientious approach with over riding 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 over enthusiastic activist would do. The two extremes have to be avoided in dealing with the election disputes".
The above observation serve as pharos while we proceed to deal with the Writ Petitions before us.
3. The datum point on which a group of petitions instituted before us, is the decision of the Goa State Election Commission (hereinafter referred as 'SEC') to conduct general elections in 11 Municipal Councils in the State of Goa, in consequence of the expiry of its term. By a Notification issued on 22/02/2021, by the Commissioner, SEC, in pursuance of Article 243ZA of the Constitution of India and Rule 4 of the Goa Municipalities Election Rules, 1969, has notified the general elections of the said Municipal Councils scheduled to be held on 20/03/2021. The Notification carves out the election programme for conduct of elections to the said Municipal Councils.
Anteriorly, since the term of 11 Municipal Councils namely Margao, Mormugao, Mapusa, Curchorem-Cacora, Quepem, Cuncolim, Canacona, Pernem, Bicholim, Sanguem and Valpoi was coming to an end on 04/11/2020, the elections were slated to be held in the month of October,2020 and to be precise on 18/10/2020. The SEC, constituted under Section 237 of the Goa Panchayat Raj Act, exercising the power of superintendence and control of the conduct of all elections to the Council, on giving a thoughtful consideration to the pandemic of Covid in the entire State of Goa and taking into account that the 11 Municipal Councils are located at different geographical positions, postponed the general elections to the said Municipal Councils, by a further period of three months by issuing a Notification issued on 17/08/2020. Contemplating risk to the life of the people involved in the process, the Commission deemed it appropriate not to proceed with the election process of the Municipal Councils though their term which came to an end on 04/11/2020. By another Notification issued on 14/01/2021, the general elections were further postponed having regard to the prevailing scenario to the effect that the official responsible for conduct of elections are going to be amongst the officers who were engaged in the Management of the Covid vaccination drive to be implemented in the State in the month of January/February,2021. Apart from this aspect, the concerns shown by the Government regarding the congregation of crowds during the campaign period and holding the elections together was also given a thoughtful consideration. Since the election process involves holding public meeting, public rallies, public procession during the campaign period and contemplating that enforcing the health protocol and regulating the number of participants would be a serious issue. By exercising the power con
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