STATE OF GOA & ANR. v. FOUZIYA IMTIAZ SHAIKH & ANR.

The Judgment of the Court was delivered by R. F. NARIMAN, J

1Copy pinpoint1. IA No. 35153/2021 in SLP(C) No. 3937/2021 being an application for intervention is allowed. Leave granted in all the Special G Leave Petitions.

2Copy pinpoint2. 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 H 04.11.2020. The elections were scheduled to be held on 18.¹⁰.2020,

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which were postponed to 18.01.2021 in view of the COVID-19 pandemic A 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 B 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.

3Copy pinpoint3. On 04.02.2021, the State of Goa published an amendment to C 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 D 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.

4Copy pinpoint4. Meanwhile, being aggrieved by the order dated 04.02.2021, 9 E 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 F High Court.

5Copy pinpoint5. 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. G 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.

6Copy pinpoint6. 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 H

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A 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. H. H. After discussing in some detail the relevant constitutional and statutory provisions and the judgments of this Court and the Bombay High Court, the Division B 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. C (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 D 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 E 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 F give due weightage to our observations made therein. (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 G 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.” H Stay, though requested for, was declined.

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7Copy pinpoint7. An SLP was moved by the State of Goa being SLP (C) No.3937 A of 2021, and this Court, by its order dated 04.³.2021, was pleased to observe: “Issue notice. Having heard Mr. Tushar Mehta, learned Solicitor General for the petitioner, Mr. Atmaram NS. Nadkarni, learned Senior B 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. C List on Tuesday, the 9th March, 2021. Liberty is granted to learned counsel to file written arguments in the meantime.”

8Copy pinpoint8. This is how the matter has been placed before us today i.e., on 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.

9Copy pinpoint9. 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 F 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 G which would have the effect, in any manner, of thwarting or postponing the aforesaid 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. H

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A 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 B 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 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.

10Copy pinpoint10. 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 E 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 F 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. G

11Copy pinpoint11. Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of 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 H that a huge machinery had to be set up and was set up pursuant to the

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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.

12Copy pinpoint12. 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 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.

13Copy pinpoint13. 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 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 H

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A 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 20.³.2021. 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 04.³.2021, the Goa SEC issued a notification on 04.³.2021, not adhering to the original timelines fixed but extending the time period for filing of nominations from 04.³.2021 till 06.³.2021 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.

14Copy pinpoint14. 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 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

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the SEC not functioning as an independent body and, in fact, acting so as A 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 B 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.

15Copy pinpoint15. Shri Ninad Laud, learned counsel appearing on behalf of the intervenor in SLP(C) No. 3937/2021, cited the judgment in Anugrah C Narain Singh v. State of U.P. (supra) and pointed out that under the 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.

16Copy pinpoint16. 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: G “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 H

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A on 20.02.2020, knowing fully well that the term of the earlier members was to expire on 24.³.2020 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 E 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 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/

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or rotating reserved seats at least two months before the date of A issuance of Notification under Rule 10(1) by which the election process to the Panchayats commences.”

17Copy pinpoint17. 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: B “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.” C

18Copy pinpoint18. 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.

19Copy pinpoint19. Contrary to the Advocate General’s statement made before two Division Benches of the High Court, the State Government amended D Section 10 of the Goa Municipalities Act by adding a proviso on 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 E 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 20.³.2021. 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 F 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 20.³.2021. The High Court was thus lulled into a false sense of security when writ petitions that were filed between 9th and 12th February, 2021, challenging G 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 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 H

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A 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 01.³.2021.

20Copy pinpoint20. Both Judges delivered judgments in this case. The judgment of Bharati Dangre, J. held as follows: B “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, 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 G

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 H pointed out the flaw, his answer is in the negative. He submits

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that the issue of reservation is within the purview of the Directors A 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. B 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 C 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 D 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 Legislation, which, effectively read would mean that on constitution of a E 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 H

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A 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 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. E 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. H

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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 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 E 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 F 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 G 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 H

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A 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 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 B 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 C 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. D 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, G 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 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 H to adhere to the said the proportion and other Municipal Councils

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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. E 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 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 H

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A 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 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 F Election Rules, 1969.”

21Copy pinpoint21. 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 G 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 H total number of 20 seats to be filled by direct election to the Mapusa

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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 C 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. D

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 less than one- third of the total number of seats in favour of women. xxx xxx xxx E

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 F 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 G 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 H

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A 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. B 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 C as well as the said Act provide exactly opposite. The Director seems to hold the impression 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 D 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. E

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

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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. 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 H

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A rotation of reserved seats, will have to be set aside. Besides, the impugned notification, in so far as it 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.

B 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 C 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 D 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 E 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.

F 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.”

22Copy pinpoint22. This reasoning then led to the final conclusion which, as has been 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.

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23Copy pinpoint23. Part IXA of the Constitution titled “The Municipalities” was A inserted by the Constitution (Seventy-Fourth) Amendment Act, 1992 with effect from 1st June, 1993. Article 243P defines “Municipal Area” and “Municipality” as follows: 243P. Definitions. xxx xxx xxx B (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 C

24Copy pinpoint24. 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 Corporation for a “larger urban area” as follows: D 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; E (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 F 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 G “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. H

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25Copy pinpoint25. Article 243T is important and provides for reservation of seats in Municipalities as follows: 243T. Reservation of seats. (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.

26Copy pinpoint26. Under Article 243U(1), every Municipality, unless earlier dissolved 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: H

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243U. Duration of Municipalities, etc. A 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: B 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.

27Copy pinpoint27. Article 243ZA provides for elections to Municipalities as C 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 D 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.

28Copy pinpoint28. Article 243K of the Constitution provides as follows: E 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 F 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: G 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. H

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A (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). B (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.

29Copy pinpoint29. It will be noticed that Article 243ZA(1) corresponds to Article 324 contained in Part XV dealing with elections to Parliament and the C legislative bodies of the States. Likewise, 243ZA(2) corresponds to Article 328 contained in the same chapter.

30Copy pinpoint30. Article 243ZG is important and states: 243ZG. Bar to interference by courts in electoral matters. D 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; E (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.]

F This Article corresponds to Article 329 of the Constitution contained in Part XV.

31Copy pinpoint31. The relevant provisions of the Goa Municipalities Act are contained in Sections 8 to 10A thereof:

8. Establishment and incorporation of Councils. G 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 H sue, or be sued, through its Chief Officer.

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9. Composition of Councils. A (1) Save as otherwise provided by this Act, every Council shall consist of Councillors elected at ward elections; Provided that— (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: D Class of Number of elected Municipal area Councillors

i) ‘A’ Class The minimum number of elected Councillors shall be 20, and for every 2500 of the voters in the E 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’ Class The minimum number of elected Councillor shall be F 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; G (iii) ‘C’ Class The number of elected Councillors shall be 10.

(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 H

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A 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. B (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 (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 F 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. (4) Every order under sub-section (2) shall take effect for the purposes of the next general election of the Council immediately G 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. H

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(1) The Director shall from time to time by order published in the A 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 B 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. C (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. D (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. E 10A. Election of Councils. The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all 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). F Bar contained in Articles 243ZG(b) / 329(b)

32Copy pinpoint32. 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 G 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 H

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A 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 B 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 C Constitution. The appellant’s contention in this appeal is that the view expressed by the High Court is not correct, that the 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) D

33Copy pinpoint33. 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 E 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 H

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difference in language is that whereas any law made by Parliament A 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) B

34Copy pinpoint34. This court held that “election” has to be understood in the wider 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 C embraces many steps, some of which may have an important bearing on the result of the process.” (at page 228)

35Copy pinpoint35. Dealing with the specific contention of the bar contained in D 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 E 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 F 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 G 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 H

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A implication from the language of this provision that those grounds cannot be urged in any other manner, at 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)

36Copy pinpoint36. 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

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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, C 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”. D 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 E 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. F (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 G 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) H