Prasad Gaonkar, M. L. A. of Sanguem Constituency vs Election Commission of India, Through its Chief Election Commissioner, Nirvachan Sadan, Ashok Road, New Delhi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 376

IN THE HIGH COURT OF BOMBAY AT GOA
Sadhana S. Jadhav, Manish Pitale, JJ.
Shri Prasad Gaonkar, M.L.A. of Sanguem Constituency and ors. – Petitioners
Versus
The Election Commission of India, Through its Chief Election Commissioner, Nirvachan Sadan, Ashok Road, New Delhi and ors. – Respondents
Writ Petition No. 1798 of 2021 (FILING)
Decided On : 18-01-2022

Advocate Appeared:
For the Petitioner:Mr. D. Lawande, Advocate with Mr. J. Mathew, Mr. A. Joglekar and Mr. A. Jamadar, Advocates
For the Respondent:Mr. S. R. Rivonkar, Senior Advocate with Mr. Rama Rivonkar, Advocate, Mr. Anil Singh, Additional Solicitor General with Mr. Pravin Faldessai, Assistant Solicitor General, Mr. Aditya Thakker and Mr. Raviraj Chodankar, Standing Counsel, Mr. D. Pangam, Advocate General with Mr. Deep Shirodkar, Additional Government Advocate

Headnote:
Constitution of India, 1950 - Article 332, 330, 332(3), 327, 82,170 - Delimitation Act, 2002 - Section 9(1)(c), 9(1)(d), 4, 8, 9 and 10 - Schedule Castes and Scheduled Tribes Order (Amendment) Act, 2002 - Representation of Peoples Act, 1950 - Section 7 - Scheduled Tribes - Deprived Of Benefit Of Constitutional Mandate - Principal grievance of Petitioners is that Scheduled Tribe population in State has been deprived of benefit of Constitutional mandate under Article 332 of Constitution for reservation of Legislative Assembly seats in Goa in proportion to population of Schedule Tribes in State - It is contended that mandate of Constitution has been violated repeatedly by Respondents, despite representations made on behalf of Scheduled Tribes in State – Held, It is significant that even while giving such directions, Supreme Court observed that matter would proceed in accordance with provisions of Constitution for due representation of Scheduled Tribe population - Reservation of seats for Scheduled Tribes in Legislative Assemblies has to be undertaken in terms of above-noted scheme under Constitution, which mandates that seats would be reserved as per order of Delimitation Commission constituted under Delimitation Act on basis of figures of 2001 census and that next such exercise would be undertaken after first census to be conducted after year – Court is of opinion that said Order passed by Supreme Court cannot come to aid of Petitioners in present Petition - Upon appreciation of said position of law, it becomes clear that Respondent-Election Commission of India was justified in issuing communication to Petitioner no.1 - It is stated in said communication that delimitation of constituencies and reservation of seats for Scheduled Tribes, cannot be changed till the next delimitation exercise is undertaken, which in normal circumstances is due to be taken up after first census after year – Court is of opinion that Petitioners are actually seeking a direction from this Court against Respondents for carrying out an exercise, which under aforesaid scheme of Constitution has to wait till next exercise of delimitation is undertaken in terms of provisions of Constitution and Delimitation Act i.e. after first census - None of Respondents have disputed fact that Constitution does provide for reservation of seats for Scheduled Tribes in Legislative Assemblies of States - But they have highlighted before this Court aforesaid scheme under Constitution as regards manner in which such reservation is to be implemented and position of law laid down in Constitution Bench Judgment of Supreme Court in case of Meghraj Kothari vs. Delimitation Commission & Ors which is consistently followed till date – Petition dismissed.

JUDGMENT :

Manish Pitale, J.

1. The Petitioners claim to be members of Scheduled Tribe communities in the State of Goa and they have approached this Court by filing the present Writ Petition, to seek a direction against the Respondents for implementation of reservation for Scheduled Tribe candidates in the Assembly Elections to take place this year in the State.

2. The Petitioner no.1 is a sitting member of the Legislative Assembly from Sanguem Constituency in the State of Goa, while the Petitioner nos. 2 to 5 are residents of Sanguem, Priol, Quepem, and Nuvem Assembly Constituencies in the State, who claim that maximum number of persons belonging to the Scheduled Tribes are residents of the said constituencies.

3. The principal grievance of the Petitioners is that the Scheduled Tribe population in the State of Goa has been deprived of the benefit of the Constitutional mandate under Article 332 of the Constitution for reservation of Legislative Assembly seats in Goa in proportion to the population of Schedule Tribes in the State. It is contended that the mandate of the Constitution has been violated repeatedly by the Respondents, despite representations made on behalf of the Scheduled Tribes in the State of Goa.

4. The Petitioners have brought to the notice of this Court that a similar grievance was raised by Goa State Schedule Tribe Action Committee by filing Writ Petition No. 230 of 2007, before this Court. By Order dated 04.02.2013, the said Writ Petition was disposed of by a Division Bench of this Court, directing that a representation made by the Petitioners therein be decided as expeditiously as possible and, in any case, within a period of eight months. The Petitioners highlighted that till date, there was no decision on the representation while the Schedule Tribe population in the State of Goa continued to be deprived of the benefit of reservation mandated under Article 332 of the Constitution.

5. It was further brought to the notice of this Court that on 21.06.2021, Petitioner No.1 made a representation to the Respondents regarding the aforesaid grievance. On 22.07.2021, the Respondent no.1 i.e. the Election Commission of India, sent a reply to Petitioner no.1, stating that seats in the Assembly and Parliamentary constituencies are reserved for the Scheduled Castes and Scheduled Tribes as per Articles 330 and 332 of the Constitution and that for the State of Goa, seats in the Legislative Assembly were reserved as per Section 9(1)(c) and 9(1)(d) of the Delimitation Act, 2002, (for short, Delimitation Act), on the basis of census figures of the year 2001. It was further stated that the existing extent/status of the Assembly and Parliamentary constituencies as delimited by the then Delimitation Commission, could not be changed till the next delimitation exercise, which is due to be taken up after the first census after the year 2026. Respondent no.1 referred to Articles 82, 170, 330 and 332 of the Constitution. In the present Writ Petition, the Petitioners have sought quashing and setting aside of the said communication dated 22.07.2021, sent by the Respondent no.1.

6. Mr. Lawande, learned Counsel appearing for the Petitioners, submitted that the Scheduled Tribe population in the State of Goa had been wrongly denied the benefit of reservation of seats in the Legislative Assembly of Goa, despite the specific and positive mandate manifested in Article 332(3) of the Constitution. It was further submitted that the aforesaid impugned communication dated 22.07.2021, was not in consonance with the Constitutional mandate and that it amounted to an abdication of responsibility and duty cast upon the Respondents to ensure meaningful and proper representation for the Schedule Tribes population in the Legislative Assembly of the State of Goa. The learned Counsel emphasized on the language of Article 332(1) and (3) of the Constitution, which mandates that seats shall be reserved for the Scheduled Tribes in the Legislative Assembly of every