STATE OF GOA vs FOUZIYA IMTIAZ SHAIKH

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 142

SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, B.R. GAVAI AND HRISHIKESH ROY, JJ.
STATE OF GOA AND ANOTHER – APPELLANT
VERSUS
FOUZIYA IMTIAZ SHAIKH AND ANOTHER – RESPONDENT
Civil Appeal No. 881 of 2021 (@SLP (Civil) No. 3937 of 2021) with Civil Appeal No. 882 of 2021 (@SLP(C) No. 4131 of 2021); Civil Appeal No. 883 of 2021 (@SLP(C) No. 4121 of 2021); Civil Appeal No. 884 of 2021 (@SLP(C) No. 4138 of 2021); Civil Appeal No. 885 of 2021 (@SLP(C) No. 4100 of 2021); Civil Appeal No. 886 of 2021 (@SLP(C) No. 4200 of 2021); Civil Appeal No. 887 of 2021 (@SLP(C) No. 4201 of 2021); Civil Appeal No. 888 of 2021 (@SLP(C) No. 4219 of 2021); Civil Appeal No. 889 of 2021 (@SLP(C) No. 4160 of 2021); Civil Appeal No. 890 of 2021 (@SLP(C) No. 4360 of 2021); Civil Appeal No. 891 of 2021 (@SLP(C) No. 4362 of 2021); Civil Appeal No. 892 of 2021; (@SLP(C) No. 4361 of 2021) and W.P.(C) No. 309 of 2021
Decided on : 12-03-2021

Advocates:
Advocate Appeared:
For the Parties :Mr. Tushar Mehta, S.G., Mr. Devidas Pangam, Advocate, Gen., Mr. Arun R. Pedneker, Advocate, Ms. Mukti Chowdhary, Advocate, Mr. Shubham Priolkar, Advocate, Mr. Atmaram NS Nadkarni, Sr. Advocate, Mr. Dattaprasad Lawande, Advocate, Mr. Salvador Santosh Rebello, Advocate, Mr. Pradosh Dangui, Advocate, Mr. Gauravvardhan Nadkarni, Advocate, Mr. Jay Mathews, Advocate, Arzu Paul, Advocate, Mr. Adiraj Bali, Advocate, Ms. Deepti Arya, Advocate, Mr. Raghav Sharma, Advocate, Mr. Ishant Arora, Advocate, Ms. Mitali Gupta, Advocate, Mr. Akshaya Joglekar, Advocate, Mr. Aamir Jamadar, Advocate, Mr. Ashish Krishnanath Kuncoliencar, Advocate, Mr. Vivek Jain, Advocate, Ms. Suchitra Kumbhat, Advocate, Mr. Nirvikar Singh, Advocate, Mr. Nitin Sharma, Advocate, Ms. Neela Gokhale, Advocate, Mr. Nikhil Vaze, Advocate, Mr. Kushal Choudhary, Advocate, Ms. Harshal Gupta, Advocate, Ms. Anannya Ghosh, Advocate, Mr. Abhikalp Pratap Singh, Advocate, Mr. D. Kumanan, Advocate, Mr. Ujjawal Anand Sharma, Advocate, Mr. Prashant Sivarajan, Advocate, Mr. Ninad Laud Advocate, Mr. Ivo Dcosta, Advocate, Mr. Salvador Santosh Rebello, Advocate, Mr. Ninad Laud, Advocate, Mr. Abhijeet Kamat, Advocate, Mr. Abhijit Gosavi, Advocate, Mr. Ivo MS D'Costa, Advocate, Mr. Sahil Tagotra, Advocate.

Headnote:
Constitution of India,1950 - Article 32 - Goa Municipalities Act, 1968 - Section 10(1) - Elections - Municipal Councils - Postponed - Goa State Election Commission ["SEC"] decided to postpone elections to 11 Municipal Councils whose terms were to expire - Elections were scheduled to be held which were postponed in view of COVID-19 pandemic situation in State of Goa - Governor of Goa appointed Law Secretary of Government of Goa, a member of IAS, as State Election Commissioner which duties were to be in addition to his duties as Law Secretary - By an order dated Municipal Administrators were appointed by Department of Urban Development (Municipal Administration) for all these municipal councils whose terms had expired - By a notification dated, Goa SEC further postponed election for a period of three months i.e., till April, 2021 or election date which may be determined by Commission - Whether Commission has pointed out flaw, his answer is in the negative – Held, most disturbing feature of these cases is subversion of constitutional mandate contained in Article 243K of Constitution of India - State Election Commissioner has to be a person who is independent of State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities - If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office - Directions contained in this paragraph are issued under Article 142 of Constitution of India so as to ensure that constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of Constitution be strictly followed in future - Appeals are disposed of accordingly.

JUDGMENT :

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 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.

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 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

Click Here to Read the rest of this document