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

- **Citation:** [2021] 2 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 2021-03-12
- **Case number:** Civil Appeal No. 881 of 2021
- **Bench:** Rohinton Fali Nariman, B. R. Gavai, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-goa-anr-v-fouziya-imtiaz-shaikh-anr-34935
- **Pages:** 81

## Headnote

Constitution of India:
Art. 243K - Elections to the Panchayats - Law Secretary to
Government of Goa appointed as State Election Commission(SEC)
- Correctness of - Held: Appointment of Law Secretary to
Government of Goa as SEC is subversion of the constitutional
mandate - SEC has to be a person who is independent of the State
Government as he is an important constitutional functionary who is
to oversee the entire election process in the state qua panchayats
and municipalities - Importance given to the independence of SEC
is explicit from the provision for removal from his office made in the
proviso to clause (2) of Art. 243K - Giving an additional charge of
such an important and independent constitutional office to an officer
who is directly under the control of the State Government is a
mockery of the constitutional mandate - Additional charge given to
a Law Secretary to the government of the state flouts the
constitutional mandate of Art. 243K - State Government is directed
to remedy this position by appointing an independent person to be
the SEC at the earliest.
Arts. 243T, 243ZA, 243ZG - Elections to the Municipal
Councils - Postponment of elections to 11 Municipal Councils by
Goa State Election Commission (SEC) in view of COVID-19 pandemic
situation - Law Secretary of Government of Goa appointed as State
Election Commissioner, which duties were in addition to his duties
as Law Secretary - By Notification, election postponed for three
months - Thereafter, on 04.02.21, amendment made to s. 10(1) of
the Act whereby time frame for issuance of Notifications for
reservation of wards was stated as being at least seven days before
the notification of schedule of dates and events of elections - On
the same day, issuance of order for reservation of wards for 11
[2021] 2 S.C.R. 770
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Municipal Councils, by Director of Municipal Administrator - Writ
petitions challenging amendment to s. 10(1) and the order dated
04.02.21 - On 22.2.2021, Notification was issued out at 9.00 am
and presented to the Goa Bench, by which elections to the 11
Municipal Councils commenced - Thereafter, on 04.03.21,
Notification issued by the SEC altering the original schedule of
elections - High Court quashed the order dated 04.02.21 and issued
direction to the Director to issue Notification within period of 10
days; and to SEC to notify election programme - Interference with
- Held: Not called for - High Court rightly ignored the constitutional
bar in arriving at the conclusion that the 04.02.2021 order is illegal
and ultra vires the provisions of Art. 243T r/w ss. 9 and 10 of the
Act - SEC is not an independent body as is mandated by Art.243K
but is a Law Secretary to the Government of Goa - Thus, the whole
process of these elections was faulted at the start - SEC had itself
postponed the municipal elections twice due to the COVID-19
pandemic - On facts, due application of mind could not have been
bestowed before issuing the order dated 4.2.21 - When the High
Court issued notice on 15.02.2021 for final hearing on 22.02.2021,
the SEC did not inform the High Court that vide a note of
05.02.2021, elections were proposed to be held on 20.03.2021 -
Furthermore, in a clear attempt to overreach the High Court, SEC
issued an election notification at 9:00 a.m. on 22.02.2021, even
before the Government offices open at 9:30 a.m. in order to forestall
the hearing of the writ petitions filed before the High Court - On
04.03.2021, SEC had rescheduled the election - Goa Municipalities
Act, 1968 - ss. 9, 10 and 22 - Elections.
Art. 243ZA(1) - Election to Municipalities - Powers exercised
by the State Election Commission (SEC) under Art. 243ZA(1) - Held:
The entire supervision and conduct of elections to municipalities is
vested in a constitutional authority-SEC - SEC gives orders and
directions to the State Government as well as authorities that are set
up under State statutes for supervision and conduct of elections -
SEC also fills in gap where ther

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SUPREME COURT REPORTS
[2021] 2 S.C.R.
STATE OF GOA & ANR.
v.
FOUZIYA IMTIAZ SHAIKH & ANR.
(Civil Appeal No. 881 of 2021)
MARCH 12, 2021
[ROHINTON FALI NARIMAN, B. R. GAVAI AND
HRISHIKESH ROY, JJ. ]
Constitution of India:
Art. 243K - Elections to the Panchayats - Law Secretary to
Government of Goa appointed as State Election Commission(SEC)
- Correctness of - Held: Appointment of Law Secretary to
Government of Goa as SEC is subversion of the constitutional
mandate - SEC has to be a person who is independent of the State
Government as he is an important constitutional functionary who is
to oversee the entire election process in the state qua panchayats
and municipalities - Importance given to the independence of SEC
is explicit from the provision for removal from his office made in the
proviso to clause (2) of Art. 243K - Giving an additional charge of
such an important and independent constitutional office to an officer
who is directly under the control of the State Government is a
mockery of the constitutional mandate - Additional charge given to
a Law Secretary to the government of the state flouts the
constitutional mandate of Art. 243K - State Government is directed
to remedy this position by appointing an independent person to be
the SEC at the earliest.
Arts. 243T, 243ZA, 243ZG - Elections to the Municipal
Councils - Postponment of elections to 11 Municipal Councils by
Goa State Election Commission (SEC) in view of COVID-19 pandemic
situation - Law Secretary of Government of Goa appointed as State
Election Commissioner, which duties were in addition to his duties
as Law Secretary - By Notification, election postponed for three
months - Thereafter, on 04.02.21, amendment made to s. 10(1) of
the Act whereby time frame for issuance of Notifications for
reservation of wards was stated as being at least seven days before
the notification of schedule of dates and events of elections - On
the same day, issuance of order for reservation of wards for 11
[2021] 2 S.C.R. 770
770
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Municipal Councils, by Director of Municipal Administrator - Writ
petitions challenging amendment to s. 10(1) and the order dated
04.02.21 - On 22.2.2021, Notification was issued out at 9.00 am
and presented to the Goa Bench, by which elections to the 11
Municipal Councils commenced - Thereafter, on 04.03.21,
Notification issued by the SEC altering the original schedule of
elections - High Court quashed the order dated 04.02.21 and issued
direction to the Director to issue Notification within period of 10
days; and to SEC to notify election programme - Interference with
- Held: Not called for - High Court rightly ignored the constitutional
bar in arriving at the conclusion that the 04.02.2021 order is illegal
and ultra vires the provisions of Art. 243T r/w ss. 9 and 10 of the
Act - SEC is not an independent body as is mandated by Art.243K
but is a Law Secretary to the Government of Goa - Thus, the whole
process of these elections was faulted at the start - SEC had itself
postponed the municipal elections twice due to the COVID-19
pandemic - On facts, due application of mind could not have been
bestowed before issuing the order dated 4.2.21 - When the High
Court issued notice on 15.02.2021 for final hearing on 22.02.2021,
the SEC did not inform the High Court that vide a note of
05.02.2021, elections were proposed to be held on 20.03.2021 -
Furthermore, in a clear attempt to overreach the High Court, SEC
issued an election notification at 9:00 a.m. on 22.02.2021, even
before the Government offices open at 9:30 a.m. in order to forestall
the hearing of the writ petitions filed before the High Court - On
04.03.2021, SEC had rescheduled the election - Goa Municipalities
Act, 1968 - ss. 9, 10 and 22 - Elections.
Art. 243ZA(1) - Election to Municipalities - Powers exercised
by the State Election Commission (SEC) under Art. 243ZA(1) - Held:
The entire supervision and conduct of elections to municipalities is
vested in a constitutional authority-SEC - SEC gives orders and
directions to the State Government as well as authorities that are set
up under State statutes for supervision and conduct of elections -
SEC also fills in gap where there is no law or rule governing a
particular situation during the conduct of an election - SEC being
an independent constitutional functionary is not only to be obeyed
by the State Government and the other authorities under local State
statutes, but can also approach the writ court u/Arts. 226 and 227
to either enforce directions or orders issued by it or to ask for
appropriate orders from High Courts in that behalf.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH
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Arts. 243ZG(a)/329(a) - Bar to interference by Court in
electoral matters - Delimitation and allocation of seats - Held: Bar
contained in Art. 243ZG(a) operates together with the non-obstante
clause contained therein to bar all courts from interfering with State
statutes dealing with delimitation and allocation of seats, just as is
the bar contained in Art. 329(a) - Constitutional bar of Art.
243ZG(a) applies only to courts and not the State Election
Commission.
Arts. 243ZG(a), 243ZA - Municipal elections - Consecptus
of - Held: Under Art. 243 ZG(b), no election to any municipality
can be called in question except by an election petition presented
to a Tribunal - From the date of notification of the election till the
date of the declaration of result a judicial hands-off is mandated
debarring the writ court u/Arts. 226 and 227 from interfering once
the election process has begun until it is over - Constitutional bar
operates only during this period - Thus, discretion is exercised by
the writ court as to whether an interference is called for when the
electoral process is "imminent"- notification for elections is yet to
be announced - However, if the assistance of a writ court is required
in subserving the progress of the election and facilitating its
completion, the writ court may issue orders - Furthermore, Art.
243ZG does not operate as a bar after the election tribunal decides
an election dispute before it - Thus, the jurisdiction of the High
Courts u/Art. 226 and 227 and that of the Supreme Court u/Art.
136 is not affected - Under Art. 243ZA(1), if there is a constitutional
or statutory infraction by any authority either before or during the
election process, SEC can set right such infraction - SEC can direct
the State Government or other authority to follow the Constitution
or legislative enactment - It can also approach a writ court to issue
necessary directions in this behalf - Judicial review of a State Election
Commission's order is also available on grounds of review of
administrative orders.
Disposing of the appeals and allowing the writ petition, the
Court
HELD: 1.1 The constitutional bar contained in
Article 243ZG(a) does not apply to the facts of this case. [Para
64][845-H]
Anugrah Narain Singh v. State of U.P. (1996) 6 SCC
303 : [1996] 5 Suppl. SCR 719 - relied on.
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1.2 This Court is constrained not to interfere with the
impugned judgment under Article 136 of the Constitution of India.
This is because of the following special features of the facts of
these cases:
(i) First and foremost, the State Election Commissioner is
none other than the Law Secretary to the Government of Goa.
The whole process of these elections is, therefore, faulted at the
start so to speak as the SEC is not, in the facts of these cases, an
independent body as is mandated by Article 243K.
(ii) The SEC had itself postponed the municipal elections
twice due to the COVID-19 pandemic raging throughout the State.
On the second occasion, by the notification dated 14.01.2021,
the SEC had itself postponed these elections till April 2021 or
the election date which may be determined by the State Election
Commission. Obviously, the expression "or the election date
which may be determined by the Commission" would indicate a
date beyond April, 2021, given the situation in which the State of
Goa finds itself due to the COVID-19 pandemic. It is important
to note that the High Court in its direction contained in paragraph
81(e) directs the SEC to act in accordance with this notification
so that elections are held by 15.04.2021.
(iii) In Dnyaneshwar Narso Naik's case and Sujay S. Lotlikar's
case, solemn assurances were made by the Advocate General
that orders of reservation in wards of Municipal Councils will be
made at least three weeks before the election programme is
announced. The State Government instead of acting upon these
statements, inserted an amendment by adding a proviso to Section
10 of the Goa Municipalities Act in which a lesser period was
mentioned i.e., a period of at least one week.
(iv) The Law Secretary's letter dated 05.02.2021, calling
upon the Director, Urban Development, to issue a reservation
order under Section 10 of the Goa Municipalities Act was to do
so "at an early date". The Director, by an order passed one day
before this communication i.e., on 04.02.2021, with lightning
speed provided for reservation in all 11 Municipal Councils of
women/SCs/STs and OBCs prompting the High Court to observe
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that due application of mind could not have been bestowed before
issuing such an order.
(v) All the writ petitions in the instant cases were filed
between 9th and 12th February, 2021 immediately challenging
the Director's order dated 04.02.2021. None of these writ
petitions contained a prayer that would hold up any election
programme. The only prayer was to strike down the said order
so that the Director in issuing a fresh order would have to truly
and faithfully carry out the constitutional mandate of Article 243T
of the Constitution of India and the statutory mandate contained
in Section 9 of the Goa Municipalities Act.
(vi) When the High Court issued notice on 15.02.2021 for
final hearing on 22.02.2021, the SEC did not inform the High
Court that vide a note of 05.02.2021 (disclosed for the first time
by an affidavit filed in this Court on 08.03.2021), elections were
proposed to be held on 20.03.2021.
(vii) In a clear attempt to overreach the High Court, the
State Election Commissioner, who is none other than the Law
Secretary of the State of Goa, issued an election notification at
9:00 a.m. on 22.02.2021, even before the Government offices
opened at 9:30 a.m. in order to forestall the hearing of the writ
petitions filed before the High Court, which commences hearing
the writ petitions at 9.00 a.m.
(viii) After the judgment was pronounced by the Division
Bench of the High Court on 01.03.2021 and no stay granted, this
court, "issued notice" on 04.03.2021 and stayed the impugned
judgment, the effect of which was to revive the election programme
that was notified on 22.02.2021. Despite this, the State Election
Commission, on this very day i.e., 04.03.2021, amended the
aforesaid notification by extending the time period for filing
of nomination for 5 Municipal Councils from 04.03.2021
till 06.03.2021 between 10:00 hrs to 13:00 hrs. and therefore,
rescheduled the election. [Para 66][846-F-H; 847-A-H;
848-A-E]
2.1 The scheme contained in Part XV is bodily lifted into
the provisions contained in Part IX-A, the powers exercised by
the State Election Commission-SEC under Article 243ZA(1) are
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the same as those vested in the Election Commission of India
under Article 324 of the Constitution of India. The entire
supervision and conduct of elections to municipalities is vested
in a constitutional authority that is the SEC which is to supervise
and conduct elections by giving orders and directions to the State
Government as well as authorities that are set up under State
statutes for the purpose of supervision and conduct of elections.
The power thus,conferred by the Constitution is a power given
to the SEC not only to carry out the constitutional mandate but
also to fill in gaps where there is no law or rule governing a
particular situation during the conduct of an election. The SEC,
being an independent constitutional functionary, is not only to be
obeyed by the State Government and the other authorities under
local State statutes, but can also approach the writ court under
Articles 226 and 227 of the Constitution of India to either enforce
directions or orders issued by it or to ask for appropriate orders
from High Courts in that behalf. [Para 52][832-C-F]
Mohinder Singh Gill v. Chief Election Commr. (1978) 1
SCC 405 : [1978] 2 SCR 272-relied on.
2.2 So far as delimitation and allocation of seats is concerned,
the bar contained in Article 243ZG(a) operates together with the
non-obstante clause contained therein to bar all courts from
interfering with State statutes dealing with delimitation and
allocation of seats, just as is the bar contained in Article 329(a) of
the Constitution. [Para 53][832-G-H]
Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985)
4 SCC 689 : [1985] 1 Suppl. SCR 493; Indrajit Barua
v. Election Commission of India (1985) 4 SCC
722: [1985] 3 Suppl. SCR 225; Meghraj Kothari v.
Delimitation Commission, [1967] 1 SCR 400; Assn. of
Residents of Mhow (ROM) v. Delimitation Commission
of India (2009) 5 SCC 404 : [2009] 5 SCR 384;
Rampakavi Rayappa Belagali v. B.D. Jatti (1970) 3 SCC
147: [1971] 2 SCR 611; State of U.P. v. Pradhan Sangh
Kshettra Samiti 1995 Supp (2) SCC 305: [1995]
2 SCR 1015; Anugrah Narain Singh v. State of U.P.
(1996) 6 SCC 303: [1996] 5 Suppl. SCR 719;
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH
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Dravida Munnetra Kazhagam v. State of T.N.(2020) 6
SCC 548 - referred to
2.3 A conspectus of the judgments in the context of municipal
elections would yield the following results.
I. Under Article 243 ZG(b), no election to any municipality
can be called in question except by an election petition presented
to a Tribunal as is provided by or under any law made by the
Legislature of a State. This would mean that from the date of
notification of the election till the date of the declaration of result
a judicial hands-off is mandated by the non-obstante clause
contained in Article 243ZG debarring the writ court under Articles
226 and 227 from interfering once the election process has begun
until it is over. The constitutional bar operates only during this
period. It is therefore a matter of discretion exercisable by a writ
court as to whether an interference is called for when the electoral
process is "imminent" i.e, the notification for elections is yet to
be announced.
II. If, however, the assistance of a writ court is required in
subserving the progress of the election and facilitating its
completion, the writ court may issue orders provided that the
election process, once begun, cannot be postponed or protracted
in any manner.
III. The non-obstante clause contained in Article 243ZG
does not operate as a bar after the election tribunal decides an
election dispute before it. Thus, the jurisdiction of the High Courts
under Articles 226 and 227 and that of the Supreme Court under
Article 136 of the Constitution of India is not affected as the nonobstante clause in Article 243ZG operates only during the process
of election.
IV. Under Article 243ZA(1), the SEC is in overall charge of
the superintendence, direction and control of the preparation of
electoral rolls, and the conduct of all municipal elections. If there
is a constitutional or statutory infraction by any authority including
the State Government either before or during the election
process, the SEC by virtue of its power under Article 243ZA(1)
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can set right such infraction. For this purpose, it can direct the
State Government or other authority to follow the Constitution
or legislative enactment or direct such authority to correct an
order which infracts the constitutional or statutory mandate. For
this purpose, it can also approach a writ court to issue necessary
directions in this behalf. It is entirely upto the SEC to set the
election process in motion or, in cases where a constitutional or
statutory provision is not followed or infracted, to postpone the
election process until such illegal action is remedied. This the
SEC will do taking into account the constitutional mandate of
holding elections before the term of a municipality or municipal
council is over. In extraordinary cases, the SEC may conduct
elections after such term is over, only for good reason.
V. Judicial review of a State Election Commission's order
is available on grounds of review of administrative orders. Here
again, the writ court must adopt a hands-off policy while the
election process is on and interfere either before the process
commences or after such process is completed unless interfering
with such order subserves and facilitates the progress of the
election.
VI. Article 243ZA(2) makes it clear that the law made by
the legislature of a State, making provision with respect to matters
relating to or in connection with elections to municipalities, is
subject to the provisions of the Constitution, and in particular
Article 243T, which deals with reservation of seats.
VII. The bar contained in Article 243ZG(a) mandates that
there be a judicial hands-off of the writ court or any court in
questioning the validity of any law relating to delimitation of
constituency or allotment of seats to such constituency made or
purporting to be made under Article 243ZA. This is by virtue of
the non-obstante clause contained in Article 243ZG. The statutory
provisions dealing with delimitation and allotment of seats cannot
therefore be questioned in any court. However, orders made
under such statutory provisions can be questioned in courts
provided the concerned statute does not give such orders the
status of a statutory provision.
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VIII. Any challenge to orders relating to delimitation or
allotment of seats including preparation of electoral rolls, not being
part of the election process, can also be challenged in the manner
provided by the statutory provisions dealing with delimitation of
constituencies and allotment of seats to such constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only
to courts and not the State Election Commission, which is to
supervise, direct and control preparation of electoral rolls and
conduct elections to municipalities.
X. The result of this position is that it is the duty of the
SEC to countermand illegal orders made by any authority including
the State Government which delimit constituencies or allot seats
to such constituencies. This may be done by the SEC either before
or during the electoral process, bearing in mind its constitutional
duty as delineated in the said proposition. [Para 63][843-E-H;
844-A-H; 845-A-G]
Election Commission of India v. Ashok Kumar (2000)
8 SCC 216 : [2000] 3 Suppl. SCR 34 - referred to.
2.4 No fault can be found with the Division Bench of the
High Court in ignoring any constitutional bar in arriving at the
conclusion that the 04.02.2021 order is illegal and ultra vires the
provisions of Article 243T of the Constitution of India read with
Sections 9 and 10 of the Goa Municipalities Act. There was no
submission that the reservation of seats for women and OBCs
was in accord with the provisions of the Constitution and the Goa
Municipalities Act. Indeed, even otherwise, there was no fault
with the Division Bench judgment in its conclusion that a fraction
has to be worked upwards whatever that fraction be, given the
mandatory language of Article 243T of the Constitution which
provides for reservation for women which shall not be less than
one-third. Also, the findings of the High Court on OBC
reservation not complying with the mandate of Section 9(2)(bb)
in that in several councils it was below 27% cannot be faulted.
The same goes for observations made on the 1 ST seat in Sanguem
and non-application of the principle of rotation. The Solicitor
General was right in stating that the assurances given by the
Advocate General that the State Government would not raise
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the bar of Article 243ZG(b), but would instead argue that since
the election programme was "imminent" and that thus, the High
Court ought not intervene, cannot alter the position in law. There
can be no doubt that no concession by counsel can operate against
a constitutional bar. [Para 64, 65][846-B-F]
2.5 The order of the High Court will be observed with two
changes. In paragraph 81(c), it is clarified that the period of 10
days in which the Director, Urban Development is to issue a fresh
order will be 10 days from the date of this judgment. Also, instead
of "15th April" occurring in paragraph 81(e), the words "30th
April" be substituted. All the other directions will remain
undisturbed. [Para 67][849-A-B]
2.6 The most disturbing feature of these cases is the
subversion of the constitutional mandate contained in Article
243K of the Constitution of India. The State Election
Commissioner has to be a person who is independent of the State
Government as he is an important constitutional functionary who
is to oversee the entire election process in the state qua
panchayats and municipalities. The importance given to the
independence of a State Election Commissioner is explicit from
the provision for removal from his office made in the proviso to
clause (2) of Article 243K. Insofar as the manner and the ground
for his removal from the office is concerned, he has been equated
with a Judge of a High Court. Giving an additional charge of such
an important and independent constitutional office to an officer
who is directly under the control of the State Government is, a
mockery of the constitutional mandate. Therefore, it is declared
that the additional charge given to a Law Secretary to the
government of the state flouts the constitutional mandate of
Article 243K. The State Government is directed to remedy this
position by appointing an independent person to be the State
Election Commissioner at the earliest. Such person cannot be a
person who holds any office or post in the Central or any State
Government. It is also made clear that henceforth, all State
Election Commissioners appointed under Article 243K in the
length and breadth of India have to be independent persons who
cannot be persons who are occupying a post or office under the
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Central or any State Government. 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. The
directions are issued under Article 142 of the Constitution of
India so as to ensure that the constitutional mandate of an
independent State Election Commission which is to conduct
elections under Part IX and IXA of the Constitution be strictly
followed in the future. [Para 68][849-B-H]
Writ Petition (Civil) No. 309/2021
3. The instant Writ Petition (Civil) No. 309/2021 has been
filed under Article 32 of the Constitution of India by a resident of
Margao, Goa, challenging the reservation order dated 04.02.2021
issued by the Director of Municipal Administration, Goa, and the
notification dated 04.03.2021 which was issued by the Goa SEC
altering the original schedule of elections. In view of the fact that
the reservation order dated 04.02.2021 has been set aside and
that a fresh election schedule will have to be notified, the writ
petition is allowed and the notification dated 04.03.2021 is also
struck down. [Para 69][850-A-C]
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. Syed Ahmad Ishaque [1955] 1 SCR
1104; Narayan Bhaskar Khare (Dr) v. Election
Commission of India [1957] SCR 1081; Kishansing
Tomar v. Municipal Corpn., Ahmedabad (2006) 8 SCC
352 : [2006] 7 Suppl. SCR 454; W.B. State Election
Commission v. Communist Party of India (Marxist)
(2018) 18 SCC 141 : [2018] SCR 100; Dravida
Munnetra Kazhagam v. State of T.N.(2020) 6 SCC 548;
Laxmibai v. Collector (2020) 12 SCC 186; Election
Commission of India v. Shivaji (1988) 1 SCC 277 :
[1988] 1 SCR 878; Bendict Denis Kinny v. Tulip Brian
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Miranda & Ors. (2020) SCC Online 802; Boddula
Krishnaiah and Another v. State Election Commissioner,
A.P. & Ors. (1996) 3 SCC 416 : [1996] 3 SCR 687;
Kurapati Maria Das v. Dr. Ambedkar Seva Samajan,
(2009) 7 SCC 387 : [2009] 6 SCR 498; Digvijay Mote
v. Union of India, (1993) 4 SCC 175: [1993]
1 Suppl. SCR 553; Kalabharati Advertising v. Hemant
Vimalnath Narichania & Ors (2010) 9 SCC 437: [2010]
10 SCR 971 - referred to.
Case Law Reference
[1952] SCR 218
referred to
Para 9
[1955] 1 SCR 267
referred to
Para 9
[1955] 1 SCR 1104
referred to
Para 9
[1957] SCR 1081
referred to
Para 9
[1996] 5 Suppl. SCR 719
referred to
Para 9
[2006] 7 Suppl. SCR 454
referred to
Para 9
[2018] SCR 100
referred to
Para 9
(2020) 12 SCC 186
referred to
Para 9
[1988] 1 SCR 878
referred to
Para 10
[1978] 2 SCR 272
relied on
Para 52
[1985] 1 Suppl. SCR 493
referred to
Para 9, 53
[1985] 3 Suppl. SCR 225
referred to
Para 9, 54
[1967] 1 SCR 400
referred to
Para 9, 55
(2020) 6 SCC 548
referred to
Para 9, 60
[1996] 3 SCR 687
referred to
Para 44
[2009] 6 SCR 498
referred to
Para 46
[1993] 1 Suppl. SCR 553
referred to
Para 50
[2009] 5 SCR 384
referred to
Para 56
[1971] 2 SCR 611
referred to
Para 57
[1995] 2 SCR 1015
referred to
Para 58
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH
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[2000] 3 Suppl. SCR 34
referred to.
Para 62
[1996] 5 Suppl. SCR 719
relied on
Para 64
[2010] 10 SCR 971
referred to
Para 66 (vii)
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
No. 881 of 2021
From the Judgment and Order dated 01.03.2021 of the High Court
of Bombay at Goa in Writ Petition No. 86 of 2021.
With
Civil Appeal Nos. 882, 883, 884, 885, 886, 887, 888, 889, 890, 891,
892 of 2021 and W.P.(C) NO. 309/2021
Tushar Mehta, Solicitor General, Devidas Pangam, Advocate
General, Mukul Rohatgi, Vinay Navare, Atmaram NS Nadkarni, P. S.
Narasimha, Vivek Tankha, Sr. Advs., Arun R. Pedneker, Ms. Mukti
Chowdhary, Shubham Priolkar, Ms. Neela Gokhale, Kushal Choudhary,
Ms. Harshal Gupta, Ms. Anannya Ghosh, Dattaprasad Lawande,
Salvador Santosh Rebello, Pradosh Dangui, Gauravvardhan Nadkarni,
Jay Mathew, Ms. Arzu Paul, Adiraj Bali, Ms. Deepti Arya, Raghav
Sharma, Ishant Arora, Ms. Mitali Gupta, Ashish Krishnanath
Kuncoliencar, Ninad Laud, Ivo D'Costa, Abhay Anil Anturkar, M V
Mukunda, Ms. Aditi Tripathi, Abhikalp Pratap Singh, Abhijeet Kamat,
Abhijit Gosavi, Ivo MS D'Costa, Sahil Tagotra, Vivek Jain, Ms Suchitra
Kumbhat, Nirvikar Singh, Nitin Sharma, Carlos Alvares Ferreira, D.
Kunanan, Prashant Sivarajan, Ujjawal Anand Sharma, Mannat Sandhu,
Ms. Zinnea Mehta, Tushar Saigal, Ankur Das, Racheeta Chawla, Ankit
Shah, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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,
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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
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH
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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
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 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
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
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
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."
Stay, though requested for, was declined.
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7. An SLP was moved by the State of Goa being SLP (C) No.3937
of 2021, and this Court, by its order dated 04.03.2021, was pleased to
observe:
"Issue notice.
Having heard Mr. Tushar Mehta, learned Solicitor General for
the petitioner, Mr. Atmaram NS. Nadkarni, learned Senior
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.
List on Tuesday, the 9th March, 2021.
Liberty is granted to learned counsel to file written arguments in
the meantime."
8. 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.
9. 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
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
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.
STATE OF GOA v. FOUZIYA IMTIAZ SHAIKH
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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
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.
10. 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
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
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.
11. 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
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.
12. 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.
13. 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.