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

[2021] 2 S.C.R. 770

[2021] 2 S.C.R.

STATE OF GOA & ANR.

FOUZIYA IMTIAZ SHAIKH & ANR.

(Civil Appeal No. 881 of 2021)

MARCH 12, 2021

[ROHINTON FALI NARIMAN, B. R. GAVAI ANDHRISHIKESH ROY, JJ. ]

Constitution of India:

CArt. 243K – Elections to the Panchayats – Law Secretary toGovernment of Goa appointed as State Election Commission(SEC)– Correctness of – Held: Appointment of Law Secretary toGovernment of Goa as SEC is subversion of the constitutionalmandate – SEC has to be person who is independent of the StateGovernment as he is an important constitutional functionary who isDto oversee the entire election process in the state qua panchayatsand municipalities – Importance given to the independence of SECis explicit from the provision for removal from his office made in theproviso to clause (2) of Art. 243K – Giving an additional charge ofsuch an important and independent constitutional office to an officerEwho is directly under the control of the State Government is amockery of the constitutional mandate – Additional charge given toa Law Secretary to the government of the state flouts theconstitutional mandate of Art. 243K – State Government is directedto remedy this position by appointing an independent person to bethe SEC at the earliest.F

Arts. 243T, 243ZA, 243ZG – Elections to the MunicipalCouncils – Postponment of elections to 11 Municipal Councils byGoa State Election Commission (SEC) in view of COVID-19 pandemicsituation – Law Secretary of Government of Goa appointed as StateElection Commissioner, which duties were in addition to his dutiesGas Law Secretary – By Notification, election postponed for threemonths – Thereafter, on 04.02.21, amendment made to s. 10(1) ofthe Act whereby time frame for issuance of Notifications forreservation of wards was stated as being at least seven days beforethe notification of schedule of dates and events of elections – OnHthe same day, issuance of order for reservation of wards for 11

Municipal Councils, by Director of Municipal Administrator – Writpetitions challenging amendment to s. 10(1) and the order dated04.02.21 – On 22.2.2021, Notification was issued out at 9.00 amand presented to the Goa Bench, by which elections to the 11Municipal Councils commenced – Thereafter, on 04.03.21,Notification issued by the SEC altering the original schedule ofelections – High Court quashed the order dated 04.02.21 and issueddirection to the Director to issue Notification within period of 10days; and to SEC to notify election programme – Interference with– Held: Not called for – High Court rightly ignored the constitutionalbar in arriving at the conclusion that the 04.02.2021 order is illegaland ultra vires the provisions of Art. 243T r/w ss. 9 and 10 of theAct – SEC is not an independent body as is mandated by Art.243Kbut is Law Secretary to the Government of Goa – Thus, the wholeprocess of these elections was faulted at the start – SEC had itselfpostponed the municipal elections twice due to the COVID-19pandemic – On facts, due application of mind could not have beenbestowed before issuing the order dated 4.2.21 – When the HighCourt issued notice on 15.02.2021 for final hearing on 22.02.2021,the SEC did not inform the High Court that vide note of05.02.2021, elections were proposed to be held on 20.03.2021 –Furthermore, in clear attempt to overreach the High Court, SECissued an election notification at 9:00 a.m. on 22.02.2021, evenbefore the Government offices open at 9:30 a.m. in order to forestallthe hearing of the writ petitions filed before the High Court – On04.03.2021, SEC had rescheduled the election – Goa MunicipalitiesAct, 1968 – ss. 9, 10 and 22 – Elections.Art. 243ZA(1) – Election to Municipalities – Powers exercisedby the State Election Commission (SEC) under Art. 243ZA(1) – Held:The entire supervision and conduct of elections to municipalities isvested in constitutional authority-SEC – SEC gives orders anddirections to the State Government as well as authorities that are setup under State statutes for supervision and conduct of elections –SEC also fills in gap where there is no law or rule governing aparticular situation during the conduct of an election – SEC beingan independent constitutional functionary is not only to be obeyedby the State Government and the other authorities under local Statestatutes, but can also approach the writ court u/Arts. 226 and 227to either enforce directions or orders issued by it or to ask forappropriate orders from High Courts in that behalf.

AArts. 243ZG(a)/329(a) – Bar to interference by Court inelectoral matters – Delimitation and allocation of seats – Held: Barcontained in Art. 243ZG(a) operates together with the non-obstanteclause contained therein to bar all courts from interfering with Statestatutes dealing with delimitation and allocation of seats, just as isthe bar contained in Art. 329(a) – Constitutional bar of Art.B243ZG(a) applies only to courts and not the State ElectionCommission.

Arts. 243ZG(a), 243ZA – Municipal elections – Consecptusof – Held: Under Art. 243 ZG(b), no election to any municipalitycan be called in question except by an election petition presentedCto Tribunal – From the date of notification of the election till thedate of the declaration of result judicial hands-off is mandateddebarring the writ court u/Arts. 226 and 227 from interfering oncethe election process has begun until it is over – Constitutional baroperates only during this period – Thus, discretion is exercised byDthe writ court as to whether an interference is called for when theelectoral process is “imminent”- notification for elections is yet tobe announced – However, if the assistance of writ court is requiredin subserving the progress of the election and facilitating itscompletion, the writ court may issue orders – Furthermore, Art.243ZG does not operate as bar after the election tribunal decidesEan election dispute before it – Thus, the jurisdiction of the HighCourts u/Art. 226 and 227 and that of the Supreme Court u/Art.136 is not affected – Under Art. 243ZA(1), if there is constitutionalor statutory infraction by any authority either before or during theelection process, SEC can set right such infraction – SEC can directFthe State Government or other authority to follow the Constitutionor legislative enactment – It can also approach writ court to issuenecessary directions in this behalf – Judicial review of State ElectionCommission’s order is also available on grounds of review ofadministrative orders.

Disposing of the appeals and allowing the writ petition, theGCourt

HELD: 1.1 The constitutional bar contained inArticle 243ZG(a) does not apply to the facts of this case. [Para64][845-H]

Anugrah Narain Singh v. State of U.P. (1996) 6 SCCH303 : [1996] 5 Suppl. SCR 719 – relied on.

1.2 This Court is constrained not to interfere with theimpugned judgment under Article 136 of the Constitution of India.This is because of the following special features of the facts ofthese cases:

(i) First and foremost, the State Election Commissioner isnone other than the Law Secretary to the Government of Goa.The whole process of these elections is, therefore, faulted at thestart so to speak as the SEC is not, in the facts of these cases, anindependent body as is mandated by Article 243K.

(ii) The SEC had itself postponed the municipal electionstwice 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 orthe election date which may be determined by the State ElectionCommission. Obviously, the expression “or the election datewhich may be determined by the Commission” would indicate adate beyond April, 2021, given the situation in which the State ofGoa finds itself due to the COVID-19 pandemic. It is importantto note that the High Court in its direction contained in paragraph81(e) directs the SEC to act in accordance with this notificationso that elections are held by 15.04.2021.

(iii) In Dnyaneshwar Narso Naik’s case and Sujay S. Lotlikar’scase, solemn assurances were made by the Advocate Generalthat orders of reservation in wards of Municipal Councils will bemade at least three weeks before the election programme isannounced. The State Government instead of acting upon thesestatements, inserted an amendment by adding proviso to Section10 of the Goa Municipalities Act in which lesser period wasmentioned i.e., period of at least one week.

(iv) The Law Secretary’s letter dated 05.02.2021, callingupon the Director, Urban Development, to issue reservationorder under Section 10 of the Goa Municipalities Act was to doso “at an early date”. The Director, by an order passed one daybefore this communication i.e., on 04.02.2021, with lightningspeed provided for reservation in all 11 Municipal Councils ofwomen/SCs/STs and OBCs prompting the High Court to observe

Athat due application of mind could not have been bestowed beforeissuing such an order.

(v) All the writ petitions in the instant cases were filedbetween 9th and 12th February, 2021 immediately challengingthe Director’s order dated 04.02.2021. None of these writBpetitions contained prayer that would hold up any electionprogramme. The only prayer was to strike down the said orderso that the Director in issuing fresh order would have to trulyand faithfully carry out the constitutional mandate of Article 243Tof the Constitution of India and the statutory mandate containedin Section 9 of the Goa Municipalities Act.C

(vi) When the High Court issued notice on 15.02.2021 forfinal hearing on 22.02.2021, the SEC did not inform the HighCourt that vide note of 05.02.2021 (disclosed for the first timeby an affidavit filed in this Court on 08.03.2021), elections wereproposed to be held on 20.03.2021.D

(vii) In clear attempt to overreach the High Court, theState Election Commissioner, who is none other than the LawSecretary of the State of Goa, issued an election notification at9:00 a.m. on 22.02.2021, even before the Government officesopened at 9:30 a.m. in order to forestall the hearing of the writEpetitions filed before the High Court, which commences hearingthe writ petitions at 9.00 a.m.

(viii) After the judgment was pronounced by the DivisionBench of the High Court on 01.03.2021 and no stay granted, thiscourt, “issued notice” on 04.03.2021 and stayed the impugnedFjudgment, the effect of which was to revive the election programmethat was notified on 22.02.2021. Despite this, the State ElectionCommission, on this very day i.e., 04.03.2021, amended theaforesaid notification by extending the time period for filingof nomination for 5 Municipal Councils from 04.03.2021Gtill 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 intothe provisions contained in Part IX-A, the powers exercised bythe State Election Commission-SEC under Article 243ZA(1) areH

the same as those vested in the Election Commission of Indiaunder Article 324 of the Constitution of India. The entiresupervision and conduct of elections to municipalities is vestedin constitutional authority that is the SEC which is to superviseand conduct elections by giving orders and directions to the StateGovernment as well as authorities that are set up under Statestatutes for the purpose of supervision and conduct of elections.The power thus,conferred by the Constitution is power givento the SEC not only to carry out the constitutional mandate butalso to fill in gaps where there is no law or rule governing aparticular situation during the conduct of an election. The SEC,being an independent constitutional functionary, is not only to beobeyed by the State Government and the other authorities underlocal State statutes, but can also approach the writ court underArticles 226 and 227 of the Constitution of India to either enforcedirections or orders issued by it or to ask for appropriate ordersfrom High Courts in that behalf. [Para 52][832-C-F]

Mohinder Singh Gill v. Chief Election Commr. (1978) 1SCC 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 thenon-obstante clause contained therein to bar all courts frominterfering with State statutes dealing with delimitation andallocation of seats, just as is the bar contained in Article 329(a) ofthe 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 Baruav. Election Commission of India (1985) 4 SCC722: [1985] 3 Suppl. SCR 225; Meghraj Kothari v.Delimitation Commission, [1967] 1 SCR 400; Assn. ofResidents of Mhow (ROM) v. Delimitation Commissionof India (2009) 5 SCC 404 : [2009] 5 SCR 384;Rampakavi Rayappa Belagali v. B.D. Jatti (1970) 3 SCC147: [1971] 2 SCR 611; State of U.P. v. Pradhan SanghKshettra 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;

776SUPREME COURT REPORTS

ADravida Munnetra Kazhagam v. State of T.N.(2020) 6SCC 548 – referred to

2.3 conspectus of the judgments in the context of municipalelections would yield the following results.

I. Under Article 243 ZG(b), no election to any municipalityBcan be called in question except by an election petition presentedto Tribunal as is provided by or under any law made by theLegislature of State. This would mean that from the date ofnotification of the election till the date of the declaration of resulta judicial hands-off is mandated by the non-obstante clauseCcontained in Article 243ZG debarring the writ court under Articles226 and 227 from interfering once the election process has begununtil it is over. The constitutional bar operates only during thisperiod. It is therefore matter of discretion exercisable by writcourt as to whether an interference is called for when the electoralprocess is “imminent” i.e, the notification for elections is yet toDbe announced.

II. If, however, the assistance of writ court is required insubserving the progress of the election and facilitating itscompletion, the writ court may issue orders provided that theelection process, once begun, cannot be postponed or protractedEin any manner.

III. The non-obstante clause contained in Article 243ZGdoes not operate as bar after the election tribunal decides anelection dispute before it. Thus, the jurisdiction of the High Courtsunder Articles 226 and 227 and that of the Supreme Court underFArticle 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the processof election.

IV. Under Article 243ZA(1), the SEC is in overall charge ofthe superintendence, direction and control of the preparation ofGelectoral rolls, and the conduct of all municipal elections. If thereis constitutional or statutory infraction by any authority includingthe State Government either before or during the electionprocess, the SEC by virtue of its power under Article 243ZA(1)

can set right such infraction. For this purpose, it can direct theState Government or other authority to follow the Constitutionor legislative enactment or direct such authority to correct anorder which infracts the constitutional or statutory mandate. Forthis purpose, it can also approach writ court to issue necessarydirections in this behalf. It is entirely upto the SEC to set theelection process in motion or, in cases where constitutional orstatutory provision is not followed or infracted, to postpone theelection process until such illegal action is remedied. This theSEC will do taking into account the constitutional mandate ofholding elections before the term of municipality or municipalcouncil is over. In extraordinary cases, the SEC may conductelections after such term is over, only for good reason.

V. Judicial review of State Election Commission’s orderis available on grounds of review of administrative orders. Hereagain, the writ court must adopt hands-off policy while theelection process is on and interfere either before the processcommences or after such process is completed unless interferingwith such order subserves and facilitates the progress of theelection.

VI. Article 243ZA(2) makes it clear that the law made bythe legislature of State, making provision with respect to mattersrelating to or in connection with elections to municipalities, issubject to the provisions of the Constitution, and in particularArticle 243T, which deals with reservation of seats.

VII. The bar contained in Article 243ZG(a) mandates thatthere be judicial hands-off of the writ court or any court inquestioning the validity of any law relating to delimitation ofconstituency or allotment of seats to such constituency made orpurporting to be made under Article 243ZA. This is by virtue ofthe non-obstante clause contained in Article 243ZG. The statutoryprovisions dealing with delimitation and allotment of seats cannottherefore be questioned in any court. However, orders madeunder such statutory provisions can be questioned in courtsprovided the concerned statute does not give such orders thestatus of statutory provision.

ABC

AVIII. Any challenge to orders relating to delimitation orallotment of seats including preparation of electoral rolls, not beingpart of the election process, can also be challenged in the mannerprovided by the statutory provisions dealing with delimitation ofconstituencies and allotment of seats to such constituencies.

BIX. The constitutional bar of Article 243ZG(a) applies onlyto courts and not the State Election Commission, which is tosupervise, direct and control preparation of electoral rolls andconduct elections to municipalities.

X. The result of this position is that it is the duty of theCSEC to countermand illegal orders made by any authority includingthe State Government which delimit constituencies or allot seatsto such constituencies. This may be done by the SEC either beforeor during the electoral process, bearing in mind its constitutionalduty as delineated in the said proposition. [Para 63][843-E-H;844-A-H; 845-A-G]D

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 theHigh Court in ignoring any constitutional bar in arriving at theEconclusion that the 04.02.2021 order is illegal and ultra vires theprovisions of Article 243T of the Constitution of India read withSections 9 and 10 of the Goa Municipalities Act. There was nosubmission that the reservation of seats for women and OBCswas in accord with the provisions of the Constitution and the GoaMunicipalities Act. Indeed, even otherwise, there was no faultFwith the Division Bench judgment in its conclusion that fractionhas to be worked upwards whatever that fraction be, given themandatory language of Article 243T of the Constitution whichprovides for reservation for women which shall not be less thanone-third. Also, the findings of the High Court on OBCGreservation 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 Sanguemand non-application of the principle of rotation. The SolicitorGeneral was right in stating that the assurances given by theAdvocate General that the State Government would not raiseH

the bar of Article 243ZG(b), but would instead argue that sincethe election programme was “imminent” and that thus, the HighCourt ought not intervene, cannot alter the position in law. Therecan be no doubt that no concession by counsel can operate againsta constitutional bar. [Para 64, 65][846-B-F]

2.5 The order of the High Court will be observed with twochanges. In paragraph 81(c), it is clarified that the period of 10days in which the Director, Urban Development is to issue freshorder will be 10 days from the date of this judgment. Also, insteadof “15th April” occurring in paragraph 81(e), the words “30thApril” be substituted. All the other directions will remainundisturbed. [Para 67][849-A-B]

2.6 The most disturbing feature of these cases is thesubversion of the constitutional mandate contained in Article243K of the Constitution of India. The State ElectionCommissioner has to be person who is independent of the StateGovernment as he is an important constitutional functionary whois to oversee the entire election process in the state quapanchayats and municipalities. The importance given to theindependence of State Election Commissioner is explicit fromthe provision for removal from his office made in the proviso toclause (2) of Article 243K. Insofar as the manner and the groundfor his removal from the office is concerned, he has been equatedwith Judge of High Court. Giving an additional charge of suchan important and independent constitutional office to an officerwho is directly under the control of the State Government is, amockery of the constitutional mandate. Therefore, it is declaredthat the additional charge given to Law Secretary to thegovernment of the state flouts the constitutional mandate ofArticle 243K. The State Government is directed to remedy thisposition by appointing an independent person to be the StateElection Commissioner at the earliest. Such person cannot be aperson who holds any office or post in the Central or any StateGovernment. It is also made clear that henceforth, all StateElection Commissioners appointed under Article 243K in thelength and breadth of India have to be independent persons whocannot be persons who are occupying post or office under the

DEF

ACentral or any State Government. If there are any such personsholding the post of State Election Commissioner in any otherstate, such persons must be asked forthwith to step down fromsuch office and the State Government concerned be bound tofulfil the constitutional mandate of Article 243K by appointingonly independent persons to this high constitutional office. TheBdirections are issued under Article 142 of the Constitution ofIndia so as to ensure that the constitutional mandate of anindependent State Election Commission which is to conductelections under Part IX and IXA of the Constitution be strictlyfollowed in the future. [Para 68][849-B-H]

CWrit Petition (Civil) No. 309/2021

3. The instant Writ Petition (Civil) No. 309/2021 has beenfiled under Article 32 of the Constitution of India by resident ofMargao, Goa, challenging the reservation order dated 04.02.2021issued by the Director of Municipal Administration, Goa, and theDnotification dated 04.03.2021 which was issued by the Goa SECaltering the original schedule of elections. In view of the fact thatthe reservation order dated 04.02.2021 has been set aside andthat fresh election schedule will have to be notified, the writpetition is allowed and the notification dated 04.03.2021 is alsoEstruck down. [Para 69][850-A-C]

N.P. Ponnuswami v. Returning Officer, NamakkalConstituency [1952] SCR 218; Durga Shankar Mehtav. Thakur Raghuraj Singh [1955] 1 SCR 267; HariVishnu Kamath v. Syed Ahmad Ishaque [1955] 1 SCRF1104; Narayan Bhaskar Khare (Dr) v. ElectionCommission of India [1957] SCR 1081; KishansingTomar v. Municipal Corpn., Ahmedabad (2006) 8 SCC352 : [2006] 7 Suppl. SCR 454; W.B. State ElectionCommission v. Communist Party of India (Marxist)(2018) 18 SCC 141 : [2018] SCR 100; DravidaGMunnetra Kazhagam v. State of T.N.(2020) 6 SCC 548;Laxmibai v. Collector (2020) 12 SCC 186; ElectionCommission of India v. Shivaji (1988) 1 SCC 277 :[1988] 1 SCR 878; Bendict Denis Kinny v. Tulip Brian

Miranda & Ors. (2020) SCC Online 802; BoddulaKrishnaiah 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 Motev. Union of India, (1993) 4 SCC 175: [1993]1 Suppl. SCR 553; Kalabharati Advertising v. HemantVimalnath Narichania & Ors (2010) 9 SCC 437: [2010]10 SCR 971 – referred to.

Case Law Reference

[1952] SCR 218[1955] 1 SCR 267[1955] 1 SCR 1104[1957] SCR 1081[1996] 5 Suppl. SCR 719[2006] 7 Suppl. SCR 454[2018] SCR 100(2020) 12 SCC 186[1988] 1 SCR 878 [1978] 2 SCR 272[1985] 1 Suppl. SCR 493[1985] 3 Suppl. SCR 225[1967] 1 SCR 400(2020) 6 SCC 548[1996] 3 SCR 687[2009] 6 SCR 498[1993] 1 Suppl. SCR 553[2009] 5 SCR 384[1971] 2 SCR 611[1995] 2 SCR 1015

referred toPara 9Creferred toPara 9referred toPara 9referred toPara 9referred toPara 9Dreferred toPara 9referred toPara 9referred toPara 9referred toPara 10Erelied onPara 52referred toPara 9, 53referred toPara 9, 54referred toPara 9, 55Freferred toPara 9, 60referred toPara 44referred toPara 46referred toPara 50Greferred toPara 56referred toPara 57referred toPara 58

A[2000] 3 Suppl. SCR 34referred to.Para 62[1996] 5 Suppl. SCR 719relied onPara 64[2010] 10 SCR 971referred toPara 66 (vii)

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil AppealBNo. 881 of 2021

From the Judgment and Order dated 01.03.2021 of the High Courtof Bombay at Goa in Writ Petition No. 86 of 2021.

With

Civil Appeal Nos. 882, 883, 884, 885, 886, 887, 888, 889, 890, 891,C892 of 2021 and W.P.(C) NO. 309/2021

Tushar Mehta, Solicitor General, Devidas Pangam, AdvocateGeneral, Mukul Rohatgi, Vinay Navare, Atmaram NS Nadkarni, P. S.Narasimha, Vivek Tankha, Sr. Advs., Arun R. Pedneker, Ms. MuktiChowdhary, Shubham Priolkar, Ms. Neela Gokhale, Kushal Choudhary,DMs. Harshal Gupta, Ms. Anannya Ghosh, Dattaprasad Lawande,Salvador Santosh Rebello, Pradosh Dangui, Gauravvardhan Nadkarni,Jay Mathew, Ms. Arzu Paul, Adiraj Bali, Ms. Deepti Arya, RaghavSharma, Ishant Arora, Ms. Mitali Gupta, Ashish KrishnanathKuncoliencar, Ninad Laud, Ivo D’Costa, Abhay Anil Anturkar, M VEMukunda, Ms. Aditi Tripathi, Abhikalp Pratap Singh, Abhijeet Kamat,Abhijit Gosavi, Ivo MS D’Costa, Sahil Tagotra, Vivek Jain, Ms SuchitraKumbhat, 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, AnkitShah, Advs. for the appearing parties.F

The Judgment of the Court was delivered by

R. F. NARIMAN, J

1. IA No. 35153/2021 in SLP(C) No. 3937/2021 being anapplication for intervention is allowed. Leave granted in all the SpecialGLeave Petitions.

2. The present batch of civil appeals raise important questions onthe provisions contained in Part IXA of the Constitution of India. TheGoa State Election Commission [“SEC”] decided to postpone theelections to 11 Municipal Councils whose terms were to expire onH04.11.2020. The elections were scheduled to be held on 18.10.2020,

which were postponed to 18.01.2021 in view of the COVID-19 pandemicsituation in the State of Goa. On 03.11.2020, the Governor of Goaappointed the Law Secretary of the Government of Goa, member ofthe IAS, as State Election Commissioner which duties were to be inaddition to his duties as Law Secretary. By an order dated 05.11.2020,Municipal Administrators were appointed by the Department of UrbanDevelopment (Municipal Administration) for all these municipal councilswhose terms had expired. By notification dated 14.01.2021, the GoaSEC further postponed the election for period of three months i.e., tillApril, 2021 or the election date which may be determined by theCommission.

3. On 04.02.2021, the State of Goa published an amendment toSection 10(1) of the Goa Municipalities Act, 1968 [“Goa MunicipalitiesAct”] in the official gazette, by which the time frame for issuance of anotification for reservation of wards was stated as being “at least sevendays” before the notification for schedule of dates and events of theelections. On the same day, the Director of Municipal Administrationissued an order for reservation of wards for 11 municipal councils withinthe State of Goa. We are informed by the SEC that on 05.02.2021,electoral rolls were prepared and returning officers appointed for anensuing election.

4. Meanwhile, being aggrieved by the order dated 04.02.2021, 9writ petitions were filed before the High Court of Bombay at Goabetween 09.02.2021 and 12.02.2021 challenging the aforesaid order onvarious grounds. By separate writ petition, being W.P. No.92/2021, theamendment to Section 10(1) also came to be challenged. This matter ispending hearing and final disposal before the High Court, and has beensegregated from the other writ petitions which were disposed of by theHigh Court.

5. On 15.02.2021, the writ petitions came up for hearing and theHigh Court was pleased to list the matters for final disposal on 22.02.2021.It is stated by Shri Nadkarni, learned Senior Advocate appearing onbehalf of first Respondent in civil appeal arising out of SLP(C) No.3937/2021, that this was done with the understanding between the partiesthat the election schedule would not be notified till the disposal of thewrit petitions.

6. On 22.02.2021, as the Division Bench at Goa commenced thehearing of the petitions, notification of the same date, time being 9.00

Aa.m., was presented to the Goa Bench, by which elections to the 11municipal councils commenced. The petitions were then taken up andheard by the learned Division Bench. Two judgments were delivered,one by Bharati Dangre, J., and one by M.S.Sonak, J. H. H. Afterdiscussing in some detail the relevant constitutional and statutory provisionsand the judgments of this Court and the Bombay High Court, the DivisionBBench allowed the writ petitions as follows:

“81. In the wake of the above reasoning, we pass the followingorder:

(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 herebyallowed. The impugned order dated 04/02/2021 issued by theDirector and ex-officio Additional Secretary, MunicipalAdministrator/ Urban Development, Goa in so far as it concernedthe Municipal Council of Sanguem, Mormugao, Mapusa, MargaoDand Quepem is quashed and set aside.

(c) By Writ of Mandamus, we direct the Director and ex-officioAdditional Secretary, Municipal Administrator/ UrbanDevelopment, Goa to issue fresh Notification under sub-section 1of Section 9 r/w. Subsection 1 of Section 10 of the GoaEMunicipalities Act, 1968 within period of 10 days from today,thereby ensuring inter alia, reservation for women of not less thanone-third of the total number of seats reserved for direct electionsto the Municipal Councils.

(d) While exercising the power afresh and rectifying the grossillegalities pointed out in our judgment and order, the Director shallFgive due weightage to our observations made therein.

(e) The State Election Commission of Goa is directed toexpeditiously notify the election programme, on the order forreservation of seats in the Municipal Councils being issued by theDirector, Respondent No.2 and the State Election CommissionGshall align the schedule of election in manner, to ensure itscompletion by fixing up its various stages as per the GoaMunicipalities (Election) Rules, 1969 and the culmination of theprocess on or before 15th April,2021.

(f) No order as to costs.”

HStay, though requested for, was declined.

7. An SLP was moved by the State of Goa being SLP (C) No.3937of 2021, and this Court, by its order dated 04.03.2021, was pleased toobserve:

“Issue notice.

Having heard Mr. Tushar Mehta, learned Solicitor General forthe petitioner, Mr. Atmaram NS. Nadkarni, learned SeniorAdvocate for the Respondent No.1 and Mr. Abhay Anil Anturkar,learned counsel for the Respondent No.2, we stay the impugneddirection of the High Court as well as the Election Commissionnotification 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 inthe meantime.”

8. This is how the matter has been placed before us today i.e., on9.3.2021. Shri Tushar Mehta, learned Solicitor General appearing onbehalf of the State of Goa, read to us Articles 243T, 243ZA, 243ZG ofthe Constitution of India and Sections 9, 10 and 22 of the Goa MunicipalitiesAct. 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 Article243ZG(a) gets attracted as the order dated 04.02.2021 relating todelimitation of constituencies and allotment of seats to such constituenciesis “law” for the purposes of 243ZG(a), attracting the constitutional barwhich prohibits any court from entertaining challenge to the aforesaidorder’s validity. For this purpose, he relied heavily on Meghraj Kothariv. Delimitation Commission, (1967) 1 SCR 400. Even otherwise, theconcession made by the learned Advocate General in the High Courtcannot bind constitutional court which must give effect to constitutionalbar in electoral matters, and once the election schedule is notified, thereis complete judicial hands-off qua challenge to such election schedulewhich would have the effect, in any manner, of thwarting or postponingthe aforesaid election schedule. For this purpose, he relied upon theconstitutional bar contained in Article 243ZG(b), and relied on plethoraof 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.

ASyed Ahmad Ishaque, (1955) 1 SCR 1104, Narayan Bhaskar Khare(Dr) v. Election Commission of India, 1957 SCR 1081, MohinderSingh Gill v. Chief Election Commr., (1978) 1 SCC 405, LakshmiCharan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689, IndrajitBarua v. Election Commission of India, (1985) 4 SCC 722, AnugrahNarain Singh v. State of U.P., (1996) 6 SCC 303, Election CommissionBof India v. Ashok Kumar, (2000) 8 SCC 216, Kishansing Tomar v.Municipal Corpn., Ahmedabad, (2006) 8 SCC 352, W.B. State ElectionCommission v. Communist Party of India (Marxist), (2018) 18 SCC141, Dravida Munnetra Kazhagam v. State of T.N., (2020) 6 SCC548, Laxmibai v. Collector, (2020) 12 SCC 186. He also relied onCjudgments which in other contexts, such as cooperative societies forexample, accepted what is laid down in Ponnuswamy’s judgment evenwithout any constitutional or statutory bar, stating that the only methodof challenging an election is after the election process is over, by meansof an election petition. For this purpose, he relied upon Section 22 of theGoa Municipalities Act which, according to him, contained grounds wideDenough to set aside the entire election.

10. Shri Mukul Rohatgi, learned Senior Advocate appearing onbehalf 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 aEcourt ought not to interfere with an election at stage in which theelection process is “imminent” i.e., about to start. He then relied uponElection Commission of India v. Ashok Kumar (supra) for theproposition that even if there were certain faults after an election processis underway, these faults must be ignored as they can always be theFsubject matter of an election petition after the elections are complete.For this purpose, he also relied heavily upon Election Commission ofIndia v. Shivaji, (1988) 1 SCC 277 and read from Chandrachud, J.’sjudgment in W.B. State Election Commission v. Communist Party ofIndia (Marxist) (supra) speaking of judicial hands-off until the electionprocess is over.G11. Shri P.S. Narasimha, learned Senior Advocate appearing onbehalf of the SEC, relied upon the judgments in Kishansing Tomar v.Municipal Corpn., Ahmedabad (supra) and Anugrah Narain Singhv. State of U.P. (supra) and emphasized the fact that timely electionshad to be held for which the SEC alone was in charge. He pointed outHthat huge machinery had to be set up and was set up pursuant to the

election notification that has been issued, all of which would be set atnaught if the impugned judgment is not set aside. He further added thatthe observations made by the impugned judgment on the State ElectionCommission’s indolence and non-action were not fair to the Commissionand asked that they be deleted.

12. Shri Vinay Navare, learned Senior Advocate appearing onbehalf of the appellant in civil appeal arising out of SLP(C) Diary No.6385/2021, also emphasized the non obstante clause contained in Article243ZG. He also went into and attacked the judgment’s findings onwomen’s reservation not being correctly made and that the rotationprinciple was not correctly observed. He strongly advocated that the deminimis non curat lex principle be applied to these situations particularlywhen the election process is already underway. So far as the judgmentstriking down the impugned order on the ground that OBC reservationwas less than 27% as mandated by Section 9(2)(bb) of the GoaMunicipalities Act, he argued that the judgment itself made it clear that,though not raised in the writ petitions, the Judges took it up suo motuand set aside the order even on this ground.

13. Shri Atmaram Nadkarni, learned Senior Advocate appearingon 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 Rohatgidid not challenge the impugned judgment on merits. He was also atpains to point out that in the facts of the present case, there was nodelimitation commission which is headed by retired judge but the entireexercise of delimitation and reservation is done by an executive officerof the Government. He argued that this Court ought not to exercise itsjurisdiction under Article 136 of the Constitution at all in view of the factthat the SEC in the present case was not an independent body but wasacting through the Law Secretary, Government of Goa, which is whatled to the order dated 04.02.2021. He strongly relied upon two earlierBombay High Court judgments in which solemn statements had beenmade before the High Court that the State Government would issuereservation notifications at least 3 weeks before the notification whichlays down the schedule for elections. He further argued that the lightningspeed with which everything was done on one day and which wascorrectly commented upon by the High Court judgment showed completenon-application of mind insofar as reservation of women/SCs/STs/OBCsand the principle of rotation was concerned. He also added that therewas malice in law so far as the SEC is concerned, as has been found by

Athe High Court. Contrary to assurances made before earlier DivisionBenches, the State Government first amended Section 10 of the GoaMunicipalities Act and thereafter published the impugned order reservingMunicipal Wards for various categories, and then announced the electionswithout waiting for at least three weeks. The High Court was not toldthat on 05.02.2021 itself the SEC had made up its mind to hold the electionBon 20.03.2021. Had this fact been disclosed to the High Court, it couldhave heard the writ petitions much before 22.2.2021. He also stressedthe fact that despite the fact that the State Government offices begin at9:30 a.m., notification was pulled out at 9:00 a.m. on 22.02.2021 so asto forestall the High Court from commencing the hearing of the writCpetitions with fait accompli, namely, that the election process hasnow started. He also argued that even after our order dated 04.03.2021,the Goa SEC issued notification on 04.03.2021, not adhering to theoriginal timelines fixed but extending the time period for filing ofnominations from 04.03.2021 till 06.03.2021 and thus rescheduled theelections. According to the learned Senior Advocate, the bar containedDin Article 243 ZG(a) and (b) do not apply on the peculiar facts of thiscase. Further, the High Court judgment was correct on merits so far aswomen’s reservation was concerned as Article 243T mandates areservation of at least one-third, using the word “shall” and using thewords “not less than”, making it clear that in the case of fraction, theEfraction has to be rounded up to the figure one. He also relied upon aplethora of judgments in order to buttress his submissions.

14. Shri Vivek Tankha, learned Senior Advocate appearing forthe first Respondent in civil appeal arising out of SLP(C) No. 4121/2021, emphasized that the SEC that is constituted under Article 243K isFon par with the Election Commission of India. For this, he emphasized,in particular, the proviso in Article 243K(2) which makes it clear that theState Election Commissioner shall not be removed from his office exceptin like manner and on the like ground as Judge of High Court, and theconditions of service of the State Election Commissioner shall not bevaried to his disadvantage after his appointment. This provision, accordingGto the learned Senior Advocate, ensures that the SEC is an independentconstitutional functionary which is to oversee elections conducted atPanchayat and Municipal levels. The whole problem in the present casehas arisen only because this mandate of the Constitution has been floutedby the Government of Goa in that the Law Secretary has been givenHadditional charge and made the State Election Commissioner, leading to

the SEC not functioning as an independent body and, in fact, acting so asto pre-empt the jurisdiction of the High Court in challenging notificationissued by the Director under Section 10 of the Goa Municipalities Act.He reiterated the facts of this case as pointed out by Shri Nadkarni andrelied, in addition, to Bendict Denis Kinny v. Tulip Brian Miranda &Ors., (2020) SCC Online 802 for the proposition that the High Court’sdoors are never closed under Article 226 of the Constitution of India indeserving matters, in particular where the court’s process is sought tobe overreached by non-functioning non-independent State ElectionCommission.15. Shri Ninad Laud, learned counsel appearing on behalf of theintervenor in SLP(C) No. 3937/2021, cited the judgment in AnugrahNarain Singh v. State of U.P. (supra) and pointed out that under theGoa Municipalities Act, just as under the UP Act that was considered inthat case, orders of delimitation, reservation and allotment of seats donot statutorily have the force of law, and can thus be challenged in writpetition filed under Article 226 of the Constitution of India. He arguedthat this decision distinguishes Meghraj’s case (supra) and would beapplicable on the facts contained in the present case, as result of whichit was within the jurisdiction of the High Court to strike down the orderof the Director reserving seats in wards dated 04.02.2021. He also madea reference to various provisions of the Goa Municipalities Act whichspecifically provide that when fractions are to be taken into account,they should be ignored. Such provision is conspicuous by its absence inSections 9 and 10 of the Goa Municipalities Act, which is required tofollow the constitutional mandate that is contained in Article 243T of theConstitution of India.

16. Having heard learned counsel for all parties, it is important toemphasize few background facts before coming to the impugnedjudgment in the present case. In Dnyaneshwar Narso Naik v. State ofGoa, WP No. 179/2020, Division Bench of the Bombay High Court atGoa, by its judgment dated 11.12.2020, (in the context of Zilla Panchayatelections in Goa) recorded as follows:

“98. In this case, there is yet another disturbing feature. Despiterepeated letters and reminders from the SEC commencing from11.06.2019 to the State Government requiring the State Governmentto complete the exercise of delimitation, reservation, and rotationof reserved seats, such exercise was completed and notified only

on 20.02.2020, knowing fully well that the term of the earliermembers was to expire on 24.03.2020 and the SEC would requirea minimum 26 days to complete the election process. As notedearlier, the learned counsel for the Petitioners have pointed outthat the purpose for this delay and the issuance of forthcomingNotification by the SEC was to preempt any challenges to theimpugned Notification dated 20.02.2020 before the ConstitutionalCourt. The learned counsel for the Petitioners pointed out thatthis is invariably done so that once the election process sets in, theConstitutional Courts are extremely reluctant to interfere with theelection process in deference to the provisions in Article 243-O ofthe Constitution.

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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 forfinal hearing in the week commencing from 23.11.2020. The finalhearing 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 sofar advanced, this Court ought not to grant any reliefs to thePetitioners. Thus, by delaying the issuance of impugnedNotifications, the State Government has virtually succeeded indepriving the Petitioners of reasonable opportunity of seekingjudicial review before this Court. Again, there is no explanationwhatsoever in the affidavit filed on behalf of the State Governmentas to why Notifications regarding reservation were not issuedearlier even though the SEC was constantly reminding the StateGovernment for issuance of the same.102. The learned Advocate General has now, however, made astatement that hereafter the exercise of notifying reservationswill be made at least three weeks before any Notification is issuedunder Rule 10(1) of the said Rules to commence the electionprocess. According to us, this period of hardly three weeks is tooshort and this exercise of notifying the reserved constituenciesmust be made at least two months before the date of issuance ofNotification under Rule 10(1) of the said Rules. We, therefore,direct the State Government to issue Notification reserving and/

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

17. Likewise, few days later, 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:

“5. Today, the learned Advocate General for the State of Goamakes statement that the notifications for delimitation andreservation will be issued by the appropriate authorities whom herepresents, at least three weeks prior to the date of the notificationof the schedule for municipal election.”

18. This order is important in the facts of the present case as itdealt directly with Municipal elections in some of the very wards thatwere before the High Court in the impugned judgment.

19. Contrary to the Advocate General’s statement made beforetwo Division Benches of the High Court, the State Government amendedSection 10 of the Goa Municipalities Act by adding proviso on04.02.2021, which then provided that such orders shall be issued at least7 days before the date of notification of the General Elections. Armedwith this amendment, the Law Secretary as State Election Commissioner,by communication dated 05.02.2021 to the Director, UrbanDevelopment, requested the aforesaid Director to issue an order underSection 10 of the Goa Municipalities Act “at an early date” insofar asthe 11 Municipal Councils in this case are concerned, as elections areproposed to be held on by 20.03.2021. With retrospective effect andwith lightning speed, the Director complied with this request on dayprevious to this date, and provided for reservations vide order dated04.02.2021 in all 11 Municipal Councils for women/SCs/STs/OBCs. Tomake matters worse, the SEC did not disclose to the Court that vide anote dated 05.02.2021, elections were to be held on 20.03.2021. TheHigh Court was thus lulled into false sense of security when writpetitions that were filed between 9[th] and 12[th] February, 2021, challengingthe 04.02.2021 order, were taken up on 15.02.2021 and were then setdown for final hearing on 22.02.2021. To make matters worse, when theDivision Bench of the High Court commenced hearing these writ petitionsat 9.00 a.m. on 22.02.2021, it was provided with notification announcingthe schedule of elections at 9:00 a.m. on 22.02.2021. This is despite thefact that the State Government’s offices open only at 9:30 a.m. It is in

Athe background of these disturbing facts that the writ petitions werethen taken up and decided by the Division Bench of the High Court on01.03.2021.

20. Both Judges delivered judgments in this case. The judgmentof Bharati Dangre, J. held as follows:

“5. Nine Writ Petitions came to be instituted before this Court,pursuant to the order passed on 04/02/2021 by the respondentno.2 posing challenge to the determination of the reservation ofseats in different Wards of Municipal Councils for the purposeensuing Municipal elections. The said order reserved the seatsCfor different categories being Scheduled Castes, Scheduled Tribes,Other Backward Classes and women and purported it to becomplaint with the provisions contained in the Goa MunicipalitiesAct, 1968. The aforesaid Writ Petitions were filed before thisCourt between 09/02/2021 to 12/02/2021 and came to be listedbefore the Division Bench on 15/02/2021, when notice came toDbe issued for final disposal, making it returnable on 22/02/2021.The learned counsel for the Petitioners submitted that this was onthe understanding that up to 22nd February 2021, the Respondentswill not declare the election schedule. However, on 22nd February2021 itself when the matters were to be taken up for final disposal,Ethe State Election Commission (SEC) declared the electionschedule. On the returnable date we heard the respective Counselfor the petitioners and the learned Advocate General. Mr. D.Pangam, learned Advocate General also submitted that theissuance of such election schedule will not be urged as groundto deny any reliefs to the Petitioners if such reliefs are indeedFfound to be due. He, however, clarified that he would be submittingthat this Court ought not to grant any reliefs to the Petitionerssince, even on the date of the institution of the petitions, the electionsto the Municipal Councils were quite imminent.

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13. Mr. Joshi, learned counsel appearing for the SEC admittedthat there has been constitutional infraction on the part of theDirector, in failing to reserve not less than one-third of the totalnumber of seats in Mormugao and Mapusa Municipal Councils,in favour of women. On questioned whether the Commission hasHpointed out the flaw, his answer is in the negative. He submits

that the issue of reservation is within the purview of the Directorsand therefore, notwithstanding the constitutional or statutoryinfraction, the SEC is helpless and has no choice but to proceedwith the elections based on the impugned order dated 4th February2021 and since it is bestowed with duty to conduct timelyelections.

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16. Pertinent to note that the noting itself provide solution, byenlisting the mechanism to be adopted which reflect, that sincereservation for women is done by rotation and after delimitationdone in 2015, rotation end up in three terms, commencing from2015 and going to end in 2026. After charting the reservationwhich is already provided for women category in 2015 and 2021,the solution offered is the remaining Wards which are not reservedfor 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, inorder to avoid excessive reservation to women and therefore theaforesaid solution.

We are afraid whether this would serve the intention of clause 3of Article 243T as well as the mandate of the State Legislation,which, effectively read would mean that on constitution of aMunicipal Council for every term, not less than 1/3rd seats shallbe reserved for women. The expression used in the Constitutionas well as in the Municipalities Act, being “not less than” or “noless than”, make it clear that even fraction cannot be ignoredbecause by ignoring the same, the reservation would be minimizedthan 1/3rd and if it is done so, it would amount to infraction of theconstitutional mandate.

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18. Keeping in mind the aforesaid philosophy in introducingreservation for women by the Constitution and subsequently inthe State Legislation, we are of the firm opinion that the courseadopted by the respondent no.2 violate the mandate of law. Thesolution offered by the respondent no.2 in taking forward thereservation and to be adjusted within the three terms, is also,according to us defeat the very purpose as the mandate contained

in the first proviso appended to sub-section 1 of Section 9 whichis to be followed in every Council which means, the MunicipalCouncil constituted or deemed to be constituted under the Act fora Municipal area and as body corporate with prescribed tenure.The fraction even if it is created in calculating 1/3rd reservationcannot be permitted to be rounded off towards the earlierdenomination and the normal principle for rounding off, which isbased on logic and common sense; “if part is one half or more, itsvalue shall be increased to one and if less than one half the valueshall be ignored”, cannot be made applicable here.

In Ashok Maniklal Harkut Vs Collector, Amravati andothers [1988 Mh.L.J.378], the Full Bench of this Court, in thecontext of provisions of Section 55(1) and 55(2) of the MaharashtraMunicipalities Act held that valid no-confidence motion must bepassed by not less than two-thirds of the total number of councilorswas mandatory. The Full Bench held that the total number ofvotes must not be less than two-third though they may be more.

The fraction cannot be ignored since if the fraction is ignoredthen the majority will be two-third of the councilors. Thus, wherethe total number of elected councilors at the time when the motionwas moved 19, support of only 13 councilors, being less than two-third, was not sufficient to carry such no-confidence motion.

The Hon’ble Apex Court has reiterated the view taken by FullBench of this Court and in the case of Ganesh Sukdev Gurulev/s. Tahsildar Sinnar & Ors (2019) 3 SCC 211. The issue fordeliberation before the Apex Court involved Section 35 of theMaharashtra Village Panchayats Act, 1959, which is provisionFfor no confidence motion and sub-section 3 of the said Sectionindicating the requirement of majority of not less than two third oftotal number of members who are for the time being entitled to sitand vote. Construing the phrase “not less than”, Their Lordshipsof the Apex Court, dealing with the arguments that when theGfraction arrived is 5.33, it should be rounded to 5 has held asunder:

’12. The next submission pressed by the respondent is that forapplying the principle of rounding off 5.33 votes have to berounded as to five. Thus, five votes are sufficient to acceptmajority for the purpose of passing no-confidence motion.

Whether 5.33 votes can be rounded up into 5 votes orrequirement is at least six votes is the real issue. When thereare clear words in the statute i.e. “not less two-third of thetotal number of members” applying the principle of roundingoff, 5.33 votes cannot be treated as 5. Vote of person cannotbe expressed in fraction. When computation of majoritycomes with fraction of vote that fraction has to be treated asone vote, because votes cannot be expressed in fraction. Theprinciple that figure less than .5 is to be ignored and figuremore than .5 shall be treated as one, is not applicable in thestatutory scheme as delineated by Section 35. Provision ofSection 35(1) which provides for requirement for moving motionof no-confidence by not less than one-third of the total numberof the members who are for the time being entitled to sit andvote at any meeting of the Panchayat, is the same expressionas used in sub-section(3). Obviously, requirement of not lessthan one-third number for moving motion has to be computedfrom total number of the members who are entitled to sit andvote. Thus, the same expression having been used in sub-section(3) of Section 35, both the expressions have to be given thesame meaning. Thus, one-third of total number of memberswho are entitled to sit and vote have to be determined on thestrength of members entitled to vote at particular time. Thesame meaning has also to be applied while computing two-third majority.’

In light of the aforesaid authoritative pronouncements, we findthat the approach adopted by the respondent no.2 would stare inface of the constitutional mandate, reserving 1/3rd seats forwomen and to this extent the impugned order dated 04.02.2021 isliable to be quashed. By the same reasoning, the impugned orderwhich reserve 8 seats in Margao Municipal Council where thetotal number of seats to be filled in are 25, must also be quashedand set aside.

19. xxx xxx xxx

The Director has acted in breach of the Constitution as well asthe statutory provision and the impugned order dated 04.02.2021is therefore required to be quashed and set aside as not adheringto the mandate of law.

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23. When our attention is invited to the action of the Director andon the conduct of the Election Commission as mute spectator,which in fact was expected to act and live upto its role conferredby the constitution, ensuring free and fair elections, we are notexpected to be oblivious to the situations which have been drawnto us. We do not appreciate the helplessness expressed by theState Election Commission, which is supposed to be an authorityindependent of the Government. If the illegality has been noticedby the State Election Commission, we expect it to act withpromptitude and issue appropriate directions to the Director torectify the said action by ensuring that it follows the mandate ofthe constitution rather than to rush and issue the election schedule.Its power of superintendence over the “conduct of elections” iswide enough, which include the power to take all steps necessaryfor conduct of free and fair election. The silence on part of theconstitutional functionary, according to us, is highly detrimental tothe democratic concept of this country. We say nothing more.

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26. We would have appreciated the submission advanced by thelearned Advocate General that mere absence of policy would notlead to arbitrariness, albeit, we have before us instances as reflectedin the Noting from where we have discerned that absence ofpolicy has resulted into non discernable and non justifiable rotationof seats in different wards of respective Municipal Councils. Theprescribed reservation of women as per the mandate is one suchinstance. 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 areenlisting it as one of the aspect demonstrating non application ofmind and attitude towards flouting the mandate of the Statelegislation. The Goa Municipalities Act, prescribes reservation forother backward classes based on concentration of the populationof the said class in particular ward. By the (amendment) Act,2016 clause (bb) of sub section 2 of Section 9 has prescribed27% number of seats to be filled in the election of Municipal Councilto the person belonging to other back ward classes and such seatsare to be allotted by reservations to different wards in the Council.The Noting produced before us reflect that there was utter failureto adhere to the said the proportion and other Municipal Councils

where 27% of seats are reserved for other backward classes, theproportion of reservation in other Municipal Council stood to thepercentage of 20% being in Valpoi, Pernem and Sanguem. In theremaining Municipal Councils, the percentage of reserved seatsfor OBC vary from 21% to 25%.

Another instance of arbitrariness or non-application of mind is thereservation in ward no. 1 in Sanguem Municipal Council; the wardis reserved for Scheduled Tribe category whereas the percentageof population in the Ward of ST is 0.23% and specific avermentis made in the petition, which is not denied is there is only onevoter belonging to the said category. If the respondent no. 2 wouldhave paid attention to the wording applied in Section 10 “havingregard to the concentration of the population” and given the saidterm significance as population of SC, ST and OBC, the said errorwas avoidable. By ignoring the concentration of the population,the situation that has arisen wherein ward no. 10 which has STpopulation of 206 as against total population of 681, by followingcycle of rotation, since in the year 2010, ward no. 4 which hadmaximum ST population and it was reserved in the next election,according to us, the next highest population ward should havebeen reserved in the year 2013. The challenge to the reservationof the said provided in the year 2021 as arbitrary, justify the saidaccusation.

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31. Now we turn to the relief which the petitioners are entitled to.Once we have recorded that our interference in the process ofelection has necessitated on account of the flaws which defeatthe constitutional mandate of reservation and rotation, our endeavoris to ensure that our decision to intervene do not cause anyinterruption or obstruction or in any way to protract the electionprocedure but on the contrary it subserve the progress of electionand facilitates its completion. Amongst the 11 Municipal Councilswhose process of reservation and rotation has been alleged to beflawed one, their term has already expired and it is being informedthat its administration has been taken over by the body ofAdministrators. By the Notification published on 14/01/2021, theSEC has already postponed the elections for period of threemonths i.e. till April 2021 or the election date which may bedetermined by the Commission. By passing the impugned order

Aon 04/02/2021 the reservation has been determined by therespondent No.2 and on 22/02/2021 the election programme hasbeen notified by the respondent No.3. On perusal of the saidprogramme, it is apparent that it will consume period of 22 daysfrom the last date of filing of nomination till the declaration ofresult on 22/03/2021. Since the Municipal Councils are alreadyBunder the management of the administrator and the time scheduledfor completion of election has been extended by the electionCommission till 14/04/2021, and since from the date ofpronouncement of our judgment still there is period of 45 daysavailable, in our opinion on rectification of errors which amount toCinfringement the constitutional mandate not only qua the reservationto women but also other infractions which we have noticed, afresh programme shall be notified. If the authorities move withlightning speed, which they are expected to, since in the exigencyof the situation which prompted the SEC to be agile in issuing theNotification declaring the elections when the Writ Petitions wereDpending before the Court, challenging the impugned Notification,expecting the same promptitude by the election Commission andon behalf of the State Government to rectify its procedure, andensure free and fair election which is hallmark of democracy,we direct the respondent No.2 to redetermine the reservation ofEseats in the Wards of the Municipal Council in the light of theobservations made by us in the judgment. This exercise shall beundertaken within period of 10 days from today, which will leavesufficient time for the SEC to notify the election programme andcomplete the election process before 15/04/2021, by adhering toall the necessary stages as prescribed under the Goa MunicipalitiesFElection Rules, 1969.”

21. Likewise, M.S.Sonak, J. delivered concurring judgmentholding:

“48. Applying the principles laid down by the Full Bench and theHon’ble Supreme Court to the position of reservation in MormugaoGMunicipal Council, it will have to be held that the reservation ofonly eight seats out of total number of 25 seats in favour ofwomen is reservation which is less than one-third the total numberof seats to be filled by direct election to the Mormugao MunicipalCouncil. Similarly, the reservation of only six seats from out of aHtotal number of 20 seats to be filled by direct election to the Mapusa

Municipal Council amounts to reservation less than one-third ofthe total number of seats to be filled by direct election. The Directorhas acted in breach of both constitutional as well as statutoryprovisions in failing to provide reservation of not less than one-third of the total number of seats, in favour of women, and to thatextent the impugned order dated 4th February 2021 is required tobe quashed and set aside.

49. Mr. Joshi, learned counsel appearing for the SEC admittedthat there has been constitutional infraction on the part of theDirector, in failing to reserve not less than one-third of the totalnumber of seats in Mormugao and Mapusa Municipal Councils,in favour of women. He, however, on instructions stated that theSEC is not concerned with the issue of reservation and therefore,notwithstanding the constitutional or statutory infraction, the SECis quite helpless and will have no choice but to proceed with theelections based on the impugned order dated 4th February 2021howsoever defective such order may be.

50. At least we did not hear any arguments from the learnedAdvocate General that there was no constitutional or statutoryinfraction on the part of the Director in reserving less than one-third of the total number of seats in favour of women.

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51. The “understanding” of the Director of the constitutionalprovisions in Article 243-T or statutory provisions in Section 9 ofthe said Act cannot be the basis for sustaining the impugned order.The understanding of the Director is far from reasonable contraryto what was contended by the learned Advocate General. Neitherthe Constitution nor the said Act gives the Director three electionterms i.e. 15 years to comply with the constitutional and statutorymandate of reserving not less than one- third of the total numberof seats to be filled by direct election in “every municipality”.Both constitutional provisions as also statutory provisions make itabundantly clear that for each term the Municipality or MunicipalCouncil, must have at least one-third women councilors, for aMunicipality or Council to be regarded as validly constitutedMunicipality or Council.

52. This understanding or theory of complying with theconstitutional or statutory mandate in three installments spread

over 15 years is some unique device adopted by the Director in afutile attempt to justify the gross constitutional and statutoryinfraction. Such justification finds no basis either in theConstitution or the said Act. Such justification is neither legalnor reasonable. Based on such justification, there is no questionof sustaining the order dated 4th February 2021.

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54. From the aforesaid, it is apparent that the Director carries theimpression that both the Constitution as well as the said Act providethat the reservation in favour of women must not exceed one-third the total number of seats, when in fact, both the Constitutionas well as the said Act provide exactly opposite. The Directorseems to hold the impression that reserving seven seats out of atotal of 20 seats in Mapusa Municipal Council will “exceed andviolate the mandate of 1/3rd reservation which is 20 seats”. Suchunderstanding or impression of the Director flies in the face ofboth Constitutional as well as statutory mandate that not less thanone-third of seats must be reserved in favour of the women. Thismeans that there can be no violation of both Constitutional as wellas statutory mandate if reservation exceeds one-third but therewill be violation of both Constitutional as well as statutorymandate if the reservation is less than one-third.

55. Since the impugned order dated 4th February 2021 is basedupon such gross misunderstanding of the provisions of theConstitution and the said Act, the same, will have to be quashedand set aside. Accordingly, the first contention of the learnedAdvocate General that the understanding of the Director beingreasonable in support of the impugned order dated 4th February2021 will have to be rejected. No understanding which results indoing what the Constitution specifically prohibits can be held asreasonable understanding. Any order based upon suchunderstanding is therefore ultimately vulnerable and will have tobe quashed and set aside.

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59. In the aforesaid context, we do not appreciate the helplessnessexpressed by the SEC, which is supposed to be an authorityindependent of the Government of Goa. The fortuitouscircumstance that the SEC is also the Law Secretary, Government

of Goa is not sufficient circumstance to express helplessness inthe wake of an unconstitutional and ultra vires order by the Directorof Municipal Administration/Urban Development. According tous, it was the duty of the SEC to require the Director to immediatelyrectify the impugned order and to provide for reservation of lessthan one-third of the seats in favour of women, rather than torush and issue election schedule.

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63. The contention that the writ Court ought not to interfere withwhen the elections are imminent cannot be sole ground to defendan indefensible order or patent infraction of the constitutional orstatutory mandate. In this case, the learned Advocate General,apart from contending that “understanding” of the Director wasnot unreasonable, did not urge even single contention in defenceof the Director’s failure to comply with the constitutional mandatein Article 243-T(3) or Section 9(1) of the said Act. Normally, atleast plausible defence is put forth and the contention is that thedetailed adjudication may be postponed until the conclusion of theelection process. In this case, however, the only contention wasthat this Court should adopt hands-off doctrine because theelections were imminent. The “hands-off doctrine” has beenevolved not to legalize or immunize patently unconstitutional ordersor to enable the parties to create situation fait accompli.

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77. The aforesaid means that there is total disconnect betweenthe noting prepared and relied upon by the Director and his affidavitdated 23rd February 2021. The noting refers to the concentrationof ST population whereas the affidavit in terms states that thereis no mandate to reserve seats for SC or ST merely because thepopulation of SC or ST in those particular wards is high. TheDirector has gone to the extent of stating that the Petitioners’contention draws no support either from the Constitution or thesaid Act. In the affidavit, there is no explanation why the rotationmandate has been openly flouted.

78. Based on the disconnect between the affidavit filed by theDirector and his Noting, the impugned order in so far as it reservesthe ward Nos.4 and 7 in favour of ST, ignoring the mandate of

Arotation of reserved seats, will have to be set aside. Besides, theimpugned notification, in so far as it concerns Margao MunicipalCouncil will also have to be set aside on account of theconstitutional and statutory infraction of reserving less than one-third seats in favour of women.

B79. The Director after having admitted that there was no policybased on which the reservation has been made or rotation policyimplemented, appears to have regarded the absence of such policyas licence to make reservations based on his whims and caprices.Different yardsticks have been applied in respect of differentMunicipal Councils. There is no uniform policy even for theCimplementation of the rotation mandate in the same councils. Theentire exercise of making reservations to no less than 11 councilswas completed by the Director in single day i.e. 4th February2021 and even the impugned order was issued on the same date.At least prima facie, even the amended provisions of sectionD9(2)(bb) of the said Act in relation to 27% reservations for OBCsappear to have been completely overlooked. The Noting that is aprecursor for the issuance of the impugned order dated 4thFebruary 2021 and was prepared on 4th February 2021 itself in atearing hurry and soon thereafter Law Secretary who is holdingthe post of SEC issued the election schedule on 22nd FebruaryE2021 even though, these petitions had already been instituted andwere posted for final disposal on 22nd February 2021. Based uponthese artificially created events, the entire defence was to pressforth the hands-off doctrine and overlook the gross illegalities andthe constitutional and statutory infraction by the Director.F80. For all the above reasons I concur and join my Sister, Hon’bleSmt. Justice Bharati Dangre in allowing all the writ petitions exceptWrit Petition No. 515 of 2021 and in issuing the operationaldirections.”

22. This reasoning then led to the final conclusion which, as hasGbeen extracted above, struck down the order dated 04.02.2021 anddirected the Director, Urban Development to issue fresh order within10 days from the date of the judgment giving due weightage to theobservations contained in the judgments. Further, the SEC was thendirected to notify the election programme afresh so that the electionHprocess culminates on or before 15.04.2021.

23. Part IXA of the Constitution titled “The Municipalities” wasinserted by the Constitution (Seventy-Fourth) Amendment Act, 1992 witheffect from 1[st] June, 1993. Article 243P defines “Municipal Area” and“Municipality” as follows:

243P. Definitions.

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(d) “Municipal area” means the territorial area of Municipalityas is notified by the Governor;

(e) “Municipality” means an institution of self-governmentconstituted under article 243Q;

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24. Municipalities are then divided into three categories underArticle 243Q. The first is the Nagar Panchayat for transitional areai.e., an area in transition from rural to an urban area; the second is theMunicipal Council for “smaller urban area” and third, MunicipalCorporation for “larger urban area” as follows:

243Q. Constitution of Municipalities.

(1) There shall be constituted in every State, -

(a) Nagar Panchayat (by whatever name called) for transitionalarea, that is to say, an area in transition from rural area to anurban area;

(b) Municipal Council for smaller urban area; and

(c) Municipal Corporation for larger urban area,

in accordance with the provisions of this Part:

Provided that Municipality under this clause may not beconstituted in such urban area or part thereof as the Governormay, having regard to the size of the area and the municipal servicesbeing provided or proposed to be provided by an industrialestablishment in that area and such other factors as he may deemfit, by public notification, specify to be an industrial township.

(2) In this article, “a transitional area”, “a smaller urban area” or“a larger urban area” means such area as the Governor may,having regard to the population of the area, the density of thepopulation therein, the revenue generated for local administration,the percentage of employment in non-agricultural activities, theeconomic importance or such other factors as he may deem fit,specify by public notification for the purposes of this Part.

A25. 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 theScheduled Tribes in every Municipality and the number of seatsBso reserved shall bear, as nearly as may be, the same proportionto the total number of seats to be filled by direct election in thatMunicipality as the population of the Scheduled Castes in theMunicipal area or of the Scheduled Tribes in the Municipal areabears to the total population of that area and such seats may beCallotted by rotation to different constituencies in Municipality.

(2) Not less than one-third of the total number of seats reservedunder clause (1) shall be reserved for women belonging to theScheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reservedDfor women belonging to the Scheduled Castes and the ScheduledTribes) of the total number of seats to be filled by direct electionin every Municipality shall be reserved for women and such seatsmay be allotted by rotation to different constituencies in aMunicipality.

(4) The offices of Chairpersons in the Municipalities shall beEreserved for the Scheduled Castes, the Scheduled Tribes andwomen in such manner as the Legislature of State may, by law,provide.

(5) The reservation of seats under clauses (1) and (2) and thereservation of offices of Chairpersons (other than the reservationFfor women) under clause (4) shall cease to have effect on theexpiration of the period specified in article 334.

(6) Nothing in this Part shall prevent the Legislature of Statefrom making any provision for reservation of seats in anyMunicipality or offices of Chairpersons in the Municipalities inGfavour of backward class of citizens.

26. Under Article 243U(1), every Municipality, unless earlierdissolved under any law for the time being in force, shall continue forfive years from the date appointed for its first meeting and no longer.Importantly, Article 243U(3) provides:H

243U. Duration of Municipalities, etc.

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(3) An election to constitute Municipality shall be completed, -(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of period of six months from the dateof its dissolution:

Provided that where the remainder of the period for which thedissolved Municipality would have continued is less than six months,it shall not be necessary to hold any election under this clause forconstituting the Municipality for such period.

27. Article 243ZA provides for elections to Municipalities asfollows:

243ZA. Elections to the Municipalities.

(1) The superintendence, direction and control of the preparationof electoral rolls for, and the conduct of, all elections to theMunicipalities shall be vested in the State Election Commissionreferred to in article 243K.

(2) Subject to the provisions of this Constitution, the Legislatureof State may, by law, make provision with respect to all mattersrelating to, or in connection with, elections to the Municipalities.

28. Article 243K of the Constitution provides as follows:

243K. Elections to the Panchayats.

(1) The superintendence, direction and control of the preparationof electoral rolls for, and the conduct of, all elections to thePanchayats shall be vested in State Election Commissionconsisting of State Election Commissioner to be appointed bythe Governor.

(2) Subject to the provisions of any law made by the Legislatureof State, the conditions of service and tenure of office of theState Election Commissioner shall be such as the Governor mayby rule determine:

Provided that the State Election Commissioner shall not be removedfrom his office except in like manner and on the like grounds as aJudge of High Court and the conditions of service of the StateElection Commissioner shall not be varied to his disadvantageafter his appointment.

806SUPREME COURT REPORTS

A(3) The Governor of State shall, when so requested by the StateElection Commission, make available to the State ElectionCommission such staff as may be necessary for the discharge ofthe functions conferred on the State Election Commission by clause(1).

B(4) Subject to the provisions of this Constitution, the Legislatureof State may, by law, make provision with respect to all mattersrelating to, or in connection with, elections to the Panchayats.

29. It will be noticed that Article 243ZA(1) corresponds to Article324 contained in Part XV dealing with elections to Parliament and theClegislative bodies of the States. Likewise, 243ZA(2) corresponds to Article328 contained in the same chapter.

30. Article 243ZG is important and states:

243ZG. Bar to interference by courts in electoral matters.DNotwithstanding anything in this Constitution, —

(a) the validity of any law relating to the delimitation ofconstituencies or the allotment of seats to such constituencies,made or purporting to be made under article 243ZA shall not becalled in question in any court;E(b) no election to any Municipality shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any law made by theLegislature of State.]

FThis Article corresponds to Article 329 of the Constitutioncontained in Part XV.31. The relevant provisions of the Goa Municipalities Act arecontained in Sections 8 to 10A thereof:

8. Establishment and incorporation of Councils.

GFor every municipal area there shall be Municipal Council. Everysuch Council shall be body corporate by the name of “The ...Municipal Council” and shall have perpetual succession and acommon seal, and shall have power to acquire, hold and disposeof property, and to enter into contracts and may by the said nameHsue, or be sued, through its Chief Officer.

9. Composition of Councils.

(1) Save as otherwise provided by this Act, every Council shallconsist of Councillors elected at ward elections;

Provided that—

(1) in every Council, no less than (1/3) seats shall be reservedfor women;

(2) in every Council, seat shall also be reserved for ScheduledCaste, Scheduled Tribes and Other Backward Class and forwoman belonging to Scheculed Caste, as the case may be, thethe Scheduled Tribes and Other Backward Class as providedin subsection (2)

(2) The Director shall from time to time by an order published inthe Official Gazette fix for each municipal area—

(a) the number of elected Councillors in accordance with thefollowing table:

(b) the number of seats, if any, to be reserved for the ScheduledCastes, Scheduled Tribes so that such number shall bear, asnearly 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 totalpopulation of that area and not less than one-third of such seatsshall be reserved for women and such seats shall be allottedby rotation to different wards in the Council.

(bb) the number of seats, if any, to be reserved for personsbelonging to the category of Other Backward Classes so thatsuch number shall be twenty seven percent of the number ofseats to be filled in through election in the Council and suchseats shall be allotted by rotation to different wards in theCouncil.

(c) the number of seats for the office of Chairperson in theCouncil for Scheduled Castes, the Scheduled Tribes and womenso that such number will bear as nearly as may be, the sameproportion to the number of elected Councillors as thepopulation of the scheduled Castes, Scheduled Tribes in themunicipal area bears to the total population of that area andsuch seats shall be allotted by rotation to different constituencies

in Council.

(3) The reservation of seats for Scheduled Castes and ScheduledTribes made by an order under sub-section (2) shall cease to haveeffect when the reservation of seats for those Castes and Tribesin the House of the People ceases to have effect under theConstitution of India:

Provided that nothing in this sub-section shall render any personelected to any such reserved seat ineligible to continue as aCouncillor during the term of office for which he was duly electedby reason only of the fact that the reservation of seats has soceased to have effect.

(4) Every order under sub-section (2) shall take effect for thepurposes of the next general election of the Council immediatelyfollowing after the date of the order.

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10. Division of municipal area into wards and reservationof wards for women, Scheduled Castes, Scheduled Tribesand Other Backward Class.

(1) The Director shall from time to time by order published in theOfficial Gazette, fix for each municipal area the number and theextent of the wards into which such area shall be divided. TheDirector shall specify in the order the ward in which seat isreserved for women but in so doing he shall ensure that such aseat its reserved from time to time by rotation in different wardsof the municipal area. He shall by like order specify the wardsin which seats are reserved for Scheduled Castes, ScheduledTribes or the Other Backward Class, including the seats for officesof Chairperson having regard to the concentration of populationof those Castes, or Tribes, or as the case may be, of those class,in any particular wards.

(2) Each of the wards shall elect only one Councillor.

(3) Every order issued under sub-section (1) shall take effect forthe purpose of the next general election immediately followingthe date of such order.

(4) Nothing in this section shall be deemed to prevent women orpersons belonging to the Scheduled Castes, Scheduled Tribes orOther Backward Class for whom seats are reserved in any Council,from standing for election and being elected to any of the seatswhich are not reserved.

10A. Election of Councils.

The superintendence, direction and control of the preparation ofelectoral rolls for, and the conduct of, all elections to the Councilshall be vested in the State Election Commission constituted undersection 237 of the Goa Panchayat Raj Act, 1994 (Act 14 of 1994).

Bar contained in Articles 243ZG(b) / 329(b)

32. The locus classicus on the subject is by an early judgment ofthis court which has been followed on innumerable occasions. N.P.Ponnuswami v. Returning Officer, Namakkal Constituency (supra),dealt with petition that was filed under Article 226 before the MadrasHigh Court praying for writ of certiorari in the following circumstances:

“The appellant was one of the persons who had filed nominationpapers for election to the Madras Legislative Assembly from theNamakkal Constituency in Salem district. On 28th November, 1951,the Returning Officer for that constituency took up for scrutiny

Athe nomination papers filed by the various candidates and on thesame day he rejected the appellant’s nomination paper on certaingrounds which need not be set out as they are not material to thepoint raised in this appeal. The appellant thereupon moved theHigh Court under Article 226 of the Constitution praying for awrit of certiorari to quash the order of the Returning OfficerBrejecting his nomination paper and to direct the Returning Officerto include his name in the list of valid nominations to be published.The High Court dismissed the appellant’s application on the groundthat it had no jurisdiction to interfere with the order of the ReturningOfficer by reason of the provisions of Article 329(b) of theCConstitution. The appellant’s contention in this appeal is that theview expressed by the High Court is not correct, that the jurisdictionof the High Court is not affected by Article 329(b) of theConstitution and that he was entitled to writ of certiorari in thecircumstances of the case.”

(at page 221)

33. This Court then summarized Part XV of the Constitution dealingwith elections as follows:

“In construing this Article, reference was made by both parties inthe course of their arguments to the other Articles in the sameEPart, namely, Articles 324, 325, 326, 327 and 328. Article 324provides for the constitution and appointment of an ElectionCommissioner to superintend, direct and control elections to thelegislatures; Article 325 prohibits discrimination against electorson the ground of religion, race, caste or sex; Article 326 providesfor adult suffrage; Article 327 empowers Parliament to pass lawsFmaking provision with respect to all matters relating to, or inconnection with, elections to the legislatures, subject to theprovisions of the Constitution; and Article 328 is complementaryarticle giving power to the State Legislature to make provisionwith respect to all matters relating to, or in connection with,elections to the State Legislature. notable difference in theGlanguage used in Articles 327 and 328 on the one hand, and Article329 on the other, is that while the first two articles begin with thewords “subject to the provisions of this Constitution”, the last articlebegins with the words “notwithstanding anything in thisConstitution”. It was conceded at the bar that the effect of this

difference in language is that whereas any law made by Parliamentunder Article 327, or by the State Legislatures under Article 328,cannot exclude the jurisdiction of the High Court under Article226 of the Constitution, that jurisdiction is excluded in regard tomatters provided for in Article 329.”

(at pages 224,225)

34. This court held that “election” has to be understood in thewider sense as follows:

“The discussion in this passage makes it clear that the word“election” can be and has been appropriately used with referenceto the entire process which consists of several stages andembraces many steps, some of which may have an importantbearing on the result of the process.”

35. Dealing with the specific contention of the bar contained inArticle 329(b) shutting out proceedings under Article 226, the Court thenheld:

“The question now arises whether the law of elections in thiscountry contemplates that there should be two attacks on mattersconnected with election proceedings, one while they are going onby invoking the extraordinary jurisdiction of the High Court underArticle 226 of the Constitution (the ordinary jurisdiction of thecourts having been expressly excluded), and another after theyhave been completed by means of an election petition. In myopinion, to affirm such position would be contrary to the schemeof Part XV of the Constitution and the Representation of the PeopleAct, which, as I shall point out later, seems to be that any matterwhich has the effect of vitiating an election should be brought uponly at the appropriate stage in an appropriate manner before aSpecial Tribunal and should not be brought up at an intermediatestage before any court. It seems to me that under the electionlaw, the only significance which the rejection of nomination paperhas consists in the fact that it can be used as ground to call theelection in question. Article 329(b) was apparently enacted toprescribe the manner in which and the stage at which this ground,and other grounds which may be raised under the law to call theelection in question, could be urged. I think it follows by necessary

implication from the language of this provision that those groundscannot be urged in any other manner, at any other stage and beforeany other court. If the grounds on which an election can be calledin question could be raised at an earlier stage and errors, if any,are rectified, there will be no meaning in enacting provision likeArticle 329(b) and in setting up Special Tribunal. Any othermeaning ascribed to the words used in the article would lead toanomalies, which the Constitution could not have contemplated,one of them being that conflicting views may be expressed by theHigh court at the pre-polling stage and by the election tribunal,which is to be an independent body, at the stage when the matteris brought up before it.

I think that brief examination of the scheme of Part XV of theConstitution and the Representation of the People Act, 1951, willshow that the construction I have suggested is the correct one.Broadly speaking, before an election machinery can be broughtDinto operation, there are three requisites which require to beattended to, namely, (1) there should be set of laws and rulesmaking provisions with respect to all matters relating to, or inconnection with, elections, and it should be decided as to howthese laws and rules are to be made; (2) there should be anexecutive charged with the duty of securing the due conduct ofEelections; and (3) there should be judicial tribunal to deal withdisputes arising out of or in connection with elections. Articles327 and 328 deal with the first of these requisites, Article 324with the second and Article 329 with the third requisite. The othertwo articles in Part XV, viz, Articles 325 and 326 deal with twoFmatters of principle to which the Constitution-framers haveattached much importance. They are: (1) prohibition againstdiscrimination in the preparation of, or eligibility for inclusion in,the electoral rolls, on grounds of religion, race, caste, sex or anyof them; and (2) adult suffrage. Part XV of the Constitution isreally code in itself providing the entire ground-work for enactingGappropriate laws and setting up suitable machinery for the conductof elections.”

(at pages 228-230)

36. The Court then summed up its conclusions thus:

“It may be pointed out that Article 329(b) must be read ascomplementary to clause (a) of that article. Clause (a) bars the

jurisdiction of the courts with regard to such law as may be madeunder Articles 327 and 328 relating to the delimitation ofconstituencies or the allotment of seats to such constituencies. Itwas conceded before us that Article 329(b) ousts the jurisdictionof the courts with regard to matters arising between thecommencement of the polling and the final selection. The questionwhich has to be asked is what conceivable reason the legislaturecould have had to leave only matters connected with nominationssubject to the jurisdiction of the High Court under Article 226 ofthe Constitution. If Part XV of the Constitution is code by itselfi.e., it creates rights and provides for their enforcement by SpecialTribunal to the exclusion of all courts including the High Court,there can be no reason for assuming that the Constitution left onesmall part of the election process to be made the subject-matterof contest before the High Courts and thereby upset the time-schedule of the elections. The more reasonable view seems to bethat Article 329 covers all “electoral matters”.

The conclusions which I have arrived at may be summed up brieflyas follows:

(1) Having regard to the important functions which thelegislatures have to perform in democratic countries, it hasalways been recognized to be matter of first importance thatelections should be concluded as early as possible accordingto time schedule and all controversial matters and all disputesarising out of elections should be postponed till after the electionsare over, so that the election proceedings may not be undulyretarded or protracted.

(2) In conformity with this principle, the scheme the electionlaw in this country as well as in England is that no significanceshould be attached to anything which does not affect the‘election’; and if any irregularities are committed while it is inprogress and they belong to the category or class which, underthe law by which elections are governed, would have the effectof vitiating the ‘election’ and enable the person affected to callit in question, they should be brought up before Special Tribunalby means of an election petition and not be made the subjectof dispute before any court while the election is in progress.”

(at pages 233, 234)

A37. Leaving open what the powers of this court and the HighCourts under Articles 226, 227 and 136 are after an Election Tribunaldecides dispute before it, this Court held:

“It should be mentioned here that the question as to what thepowers of the High Court under Articles 226 and 227 and of thisBcourt under Article 136 of the Constitution may be, is one that willhave to be decided on proper occasion.”

(at page 237)

38. What was left open in Ponnuswami’s case as to the powersof this Court under Article 136 after an election tribunal had decided anCelection petition before it was decided by this Court in Durga ShankarMehta v. Thakur Raghuraj Singh, (supra). This judgment describedthe reach of the non-obstante clause contained in Article 329(b) asfollows:

“As has been said already, the non obstante clause in Article 329Dprohibits challenge to an election either to Parliament or any StateLegislature, except in the manner laid down in clause (2) of thearticle. But there is no prohibition of the exercise of its powers bythe Supreme Court in proper cases under Article 136 of theConstitution against the decision or determination of an ElectionTribunal which like all other Judicial Tribunals comes within theEpurview of the article. It is certainly desirable that the decisionson matters of disputed election should, as soon as possible, becomefinal and conclusive so that the constitution of the legislature maybe distinctly and speedily known. But the powers under Article136 are exercisable only under exceptional circumstances. TheFarticle does not create any general right of appeal from decisionsof all tribunals. As regards the decision of this court in Ponnuswamiv. Returning Officer, Namakkal Constituency [1952 SCR 218] towhich reference has been made by the learned counsel, we wouldonly desire to point out that all that this case decided was that theHigh Court had no jurisdiction, under Article 226 of theGConstitution, to interfere by writ of certiorari, with the order ofa Returning Officer who was alleged to have wrongly rejectedthe nomination paper of particular candidate. It was held thatthe word “election” in Article 329(b) of the Constitution had beenused in the wide sense to connote the entire process, culminatingHin candidate’s being declared elected and that the scheme of

Part XV of the Constitution was that all matters which had theeffect of vitiating election should be brought up only after theelection was over and by way of an election petition. The particularpoint, which arises for consideration here, was not decided in thatcase and was expressly left open.”

(at pages 274,275)

39. Likewise, discussion on the reach of Article 329(b) andArticle 226 of the Constitution after an election petition has been decidedby an election tribunal was then discussed in Hari Vishnu Kamath v.Syed Ahmad Ishaque, (supra):

“Now, the question is whether writ is proceeding in which anelection can properly be said to be called in question within themeaning of Article 329(b). On plain reading of the article, whatis prohibited therein is the initiation of proceedings for setting asidean election otherwise than by an election petition presented tosuch authority and in such manner as provided therein. suit forsetting aside an election would be barred under this provision. InN.P. Ponnuswami v. Returning Officer, Namakkal Constituency[1952 SCR 218] it was held by this court that the word “election”in Article 329(b) was used in comprehensive sense as includingthe entire process of election commencing with the issue of anotification and terminating with the declaration of election of acandidate, and that an application under Article 226 challengingthe validity of any of the acts forming part of that process wouldbe barred. These are instances of original proceedings calling inquestion an election, and would be within the prohibition enactedin Article 329(b). But when once proceedings have been institutedin accordance with Article 329(b) by presentation of an electionpetition, the requirements of that article are fully satisfied.Thereafter when the election petition is in due course heard by atribunal and decided, whether its decision is open to attack, and ifso, where and to what extent, must be determined by the generallaw applicable to decisions of tribunals. There being no disputethat they are subject to the supervisory jurisdiction of the HighCourts under Article 226, writ of certiorari under that article willbe competent against decisions of the Election Tribunals also.

The view that Article 329(b) is limited in its operation to initiationof proceedings for setting aside an election and not to the further

DEFG

Astages following on the decision of the Tribunal is considerablyreinforced, when the question is considered with reference to acandidate, whose election has been set aside by the Tribunal. Ifhe applies under Article 226 for writ to set aside the order of theTribunal, he cannot in any sense be said to call in question theelection; on the other hand, he seeks to maintain it. His applicationBcould not, therefore, be barred by Article 329(b). And if thecontention of the first respondent is well-founded, the result willbe that proceedings under Article 226 will be competent in oneevent and not in another and at the instance of one party and notthe other. Learned counsel for the first respondent was unable toCgive any reason why this differentiation should be made. We cannotaccept construction which leads to results so anomalous.”

(at pages 1111,1112)

40. In Narayan Bhaskar Khare (Dr) v. Election Commissionof India (supra), 7-Judge Bench dealt with elections to the PresidentDand the Vice President of India contained under Article 71. The Courtheld:

“As already indicated, Article 71(1) confers jurisdiction and poweron this court to inquire into and decide “all doubts and disputesarising out of or in connection with the election of President orEVice-President”. The question is: Is there in this Article or in anyother part of the Constitution or anywhere else any indication asto the time when such inquiry is to be held? In the first place,Article 71 postulates an “election of the President or Vice-President” and provides for inquiry into doubts and disputes arisingFout of or in connection with such an election. What is the meaningto be given to the word “election” as used in this Article? If wegive to the word “election” occurring in Article 71(1) the samewide meaning as comprising the entire election process culminatingin candidate being declared elected, then clearly the inquiry is tobe made after such completed election i.e. after candidate isGdeclared to be elected as President or Vice-President as the casemay be. We see no reason why this accepted meaning should notbe given to the critical word. In the second place, under clause 3of Article 71, subject to the provisions of this Constitution,Parliament may by law regulate any matter “relating to orconnected with the election” of President or Vice-President.H

The words here also are similar to those used in Article 327 andare equally wide enough to cover matters relating to or connectedwith any stage of the entire election process. In exercise of powersconferred on it by Article 71(3), Parliament has enacted thePresidential and Vice-Presidential Election Act, 1952 (31 of 1952)to regulate certain matters relating to or connected with electionsto the office of President and Vice-President of India. glancethrough the provisions of this Act will indicate that in the view ofParliament the time for the exercise of jurisdiction by this court toinquire into and decide doubts and disputes arising out of or inconnection with the Presidential election is after the entire electionprocess is completed.”

(at pages 1088,1089)

“The above stated interpretation appears to us to be in consonancewith the other provisions of the Constitution and with good sense.If doubt or dispute arising out of or in connection with the electionof President or Vice-President can be brought before this courtbefore the whole election process is concluded then conceivablythe entire election may be held up till after the expiry of the fiveyears’ term which will involve non-compliance with themandatory provisions of Article 62. The well recognised principleof election law, Indian and English, is that elections should not beheld up and that the person aggrieved should not be permitted toventilate his individual interest in derogation of the general interestof the people, which requires that elections should be gone throughaccording to the time schedule. It is, therefore, in consonanceboth with the provisions of Article 62 and with good sense to holdthat the word “election” used in Article 71 means the entire processof election. “

(at page 1090)

41. The judgment of Krishna Iyer,J. contained in Mohinder SinghGill v. Chief Election Commr. (supra), is of great importance anddelineates not only the parameters of Article 329(b) qua writ petitionsfiled under Articles 226 and 227 of the Constitution of India but alsospeaks of the powers of the Election Commission in supervising andconducting the entire election process. This Court made distinctionbetween challenges under Article 226 while the election process is onwhich interfere with the progress of the election as against approaching

Aa writ court to accelerate the completion of the election and to act infurtherance of the election. The Court put it thus:

“28. What emerges from this perspicacious reasoning, if we maysay so with great respect, is that any decision sought and renderedwill not amount to “calling in question” an election if it subservesthe progress of the election and facilitates the completion of theelection. We should not slur over the quite essential observation“Anything done towards the completion of the election proceedingcan by no stretch of reasoning be described as questioning theelection.” Likewise, it is fallacious to treat “a single step taken infurtherance of an election” as equivalent to election.

29. Thus, there are two types of decisions, two types of challenges.The first relates to proceedings which interfere with the progressof the election. The second accelerates the completion of theelection and acts in furtherance of an election. So, the shortquestion before us, in the light of the illumination derived fromPonnuswami is as to whether the order for re-poll of the ChiefElection Commissioner is “anything done towards the completionof the election proceeding” and whether the proceedings beforethe High Court fecilitated the election process or halted its progress.The question immediately arises as to whether the relief sought inthe writ petition by the present appellant amounted to calling inquestion the election. This, in turn, revolves round the point as towhether the cancellation of the poll and the reordering of freshpoll is “part of election” and challenging it is “calling it in question”.

30. The plenary bar of Article 329(b) rests on two principles: (1)The peremptory urgency of prompt engineering of the wholeelection process without intermediate interruptions by way of legalproceedings challenging the steps and stages in between thecommencement and the conclusion. (2) The provision of specialjurisdiction which can be invoked by an aggrieved party at theend of the election excludes other form, the right and remedybeing creatures of statutes and controlled by the Constitution.Durga Shankar Mehta has affirmed this position and supplementedit by holding that, once the Election Tribunal has decided, theprohibition is extinguished and the Supreme Court’s overall powerto interfere under Article 136 springs into action. In Hari Vishnuthis court upheld the rule in Ponnuswami excluding any proceeding,

including one under Article 226, during the on-going process ofelection, understood in the comprehensive sense of notificationdown to declaration. Beyond the declaration comes the electionpetition, but beyond the decision of the Tribunal the ban of Article329(b) does not bind.

xxx xxx xxx

34.…But what is banned is not anything whatsoever done ordirected by the Commissioner but everything he does or directs infurtherance of the election, not contrarywise. For example, afterthe President notifies the nation on the holding of elections underSection 15 and the Commissioner publishes the calendar for thepoll under Section 30, if the latter orders Returning Officers toaccept only one nomination or only those which come from oneparty as distinguished from other parties or independents, is thatorder immune from immediate attack. We think not. Because theCommissioner is preventing an election, not promoting it and thecourt’s review of that order will facilitate the flow, not stop thestream. Election, wide or narrow be its connotation, means choicefrom possible plurality, monolithic politics not being our geniusor reality, and if that concept is crippled by the Commissioner’sact, he holds no election at all.”

42. Dealing with the power of the Election Commission underArticle 324 of the Constitution and judicial review of such power, in animportant passage Krishna Iyer,J. stated:

“38. Article 324, which we have set out earlier, is plenaryprovision vesting the whole responsibility for national and Stateelections and, therefore, the necessary powers to discharge thatfunction. It is true that Article 324 has to be read in the light of theconstitutional scheme and the 1950 Act and the 1951 Act. Sri Raois right to the extent he insists that if competent legislation is enactedas visualised in Article 327 the Commission cannot shake itselffree from the enacted prescriptions. After all, as Mathew, J. hasobserved in Indira Gandhi:

“In the opinion of some of the Judges constituting the majorityin Bharati’s case [Kesavananda Bharati v. State of Kerala,(1973) 4 SCC 225.] rule of law is basic structure of theConstitution apart from democracy.

The rule of law postulates the pervasiveness of the spirit oflaw throughout the whole range of Government in the sense ofexcluding arbitrary official action in any sphere.”

And the supremacy of valid law over the Commission arguesitself. No one is an imperium in imperio in our constitutionalBorder. It is reasonable to hold that the Commissioner cannot defythe law armed by Article 324. Likewise, his functions are subjectto the norms of fairness and he cannot act arbitrarily. Uncheckedpower is alien to our system.

39. Even so, situations may arise which enacted law has notCprovided for. Legislators are not prophets but pragmatists. So it isthat the Constitution has made comprehensive provision in Article324 to take care of surprise situations. That power itself has to beexercised, not mindlessly nor mala fide, not arbitrarily nor withpartiality but in keeping with the guidelines of the rule of law andnot stultifying the Presidential notification nor existing legislation.DMore is not necessary to specify; less is insufficient to leave unsaid.Article 324, in our view, operates in areas left unoccupied bylegislation and the words “superintendence, direction and control,as well as ‘conduct of all elections’, are the broadest terms”.Myriad maybes, too mystic to be precisely presaged, may call forEprompt action to reach the goal of free and fair election. It hasbeen argued that this will create constitutional despot beyondthe pale of accountability; Frankenstein’s monster who maymanipulate the system into elected despotism — instances of suchphenomena are the tears of history. To that the retort may be thatthe judicial branch, at the appropriate stage, with the potency ofFits benignant power and within the leading strings of legal guidelines,can call the bluff, quash the action and bring order into theprocess.”

43. Finally, the court summarized its conclusions as follows:

G“92. Diffusion, even more elaborate discussion, tends to blur theprecision of the conclusion in judgment and so it is meet that wesynopsize the formulations. Of course, the condensed statement we makeis for convenience, not for exclusion of the relevance or attenuation ofthe binding impact of the detailed argumentation. For this limited purpose,we set down our holdings:H

“(1)(a) Article 329(b) is blanket ban on litigative challenges toelectoral steps taken by the Election Commission and its officersfor carrying forward the process of election to its culmination inthe formal declaration of the result.

(b) Election, in this context, has very wide connotationcommencing from the Presidential notification calling upon theelectorate to elect and culminating in the final declaration of thereturned candidate.

(2)(a) The Constitution contemplates free and fair election andvests comprehensive responsibilities of superintendence, directionand control of the conduct of elections in the Election Commission.This responsibility may cover powers, duties and functions of manysorts, administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenary character in theexercise thereof. Firstly, when Parliament or any State Legislaturehas made valid law relating to or in connection with elections, theCommission, shall act in conformity with, not in violation of, suchprovisions but where such law is silent Article 324 is reservoirof power to act for the avowed purpose of, not divorced from,pushing forward free and fair election with expedition. Secondly,the Commission shall be responsible to the rule of law, act bonafide and be amenable to the norms of natural justice insofar asconformance to such canons can reasonably and realistically berequired of it as fairplay-in-action in most important area of theconstitutional order viz. elections. Fairness does import anobligation to see that no wrongdoer candidate benefits by his ownwrong. To put the matter beyond doubt, natural justice enlivensand applies to the specific case of order for total re-poll, althoughnot in full panoply but in flexible practicability. Whether it hasbeen complied with is left open for the Tribunal’s adjudication.

(3) The conspectus of provisions bearing on the subject of electionsclearly expresses the rule that there is remedy for every wrongdone during the election in progress although it is postponed to thepost-election stage and procedure as predicated in Article 329(b)and the 1951 Act. The Election Tribunal has, under the variousprovisions of the Act, large enough powers to give relief to aninjured candidate if he makes out case and such processualamplitude of power extends to directions to the Election

ACommission or other appropriate agency to hold poll, to bring upthe ballots or do other thing necessary for fulfilment of thejurisdiction to undo illegality and injustice and do complete justicewithin the parameters set by the existing law.”

44. In Boddula Krishnaiah and Another v. State ElectionBCommissioner, A.P. & Ors., (1996) 3 SCC 416, Gram Panchayatelection notification had been issued, subsequent to which the High Court,by interim orders directed 94 persons to participate in the election. Bysubsequent interim orders, the claims of various respondents were to beascertained, and ultimately, the Revenue Divisional Officer found 20persons to be eligible to be included in the voters list, as result of whichCthe High Court directed that these persons should be allowed to participatein the election. This Court held:

“11. Thus, it would be clear that once an election process hasbeen set in motion, though the High Court may entertain or mayhave already entertained writ petition, it would not be justified inDinterfering with the election process giving direction to the electionofficer to stall the proceedings or to conduct the election processafresh, in particular when election has already been held in whichthe voters were allegedly prevented from exercising their franchise.As seen, that dispute is covered by an election dispute and remedyis thus available at law for redressal.E

12. Under these circumstances, we hold that the order passed bythe High Court is not correct in law in giving direction not to declarethe result of the election or to conduct fresh poll for 20 persons,though the writ petition is maintainable. The High Court, pendingwrit petition, would not be justified in issuing direction to stall theFelection process. It is made clear that though we have held thatthe respondents are not entitled to the relief by interim order, thisorder does not preclude any candidate including defeated candidatefrom canvassing the correctness of the election. They are free,as held earlier, to seek remedy by way of an election petition asGprovided in the Act and the Rules.”45. In Election Commission of India v. Ashok Kumar (supra),a 3-Judge Bench of this Court reviewed the entire case law relating toArticle 329(b) and Article 226 holding:

“28. Election disputes are not just private civil disputes betweenHtwo parties. Though there is an individual or few individuals

arrayed as parties before the court but the stakes of theconstituency as whole are on trial. Whichever way the listerminates it affects the fate of the constituency and the citizensgenerally. conscientious approach with overriding considerationfor welfare of the constituency and strengthening the democracyis called for. Neither turning blind eye to the controversies whichhave arisen nor assuming role of overenthusiastic activist woulddo. The two extremes have to be avoided in dealing with electiondisputes.”

useful summary of conclusions based on the case law was thenset out by the court as follows:

“31. The founding fathers of the Constitution have consciouslyemployed use of the words “no election shall be called in question”in the body of Section 329(b) and these words provide thedeterminative test for attracting applicability of Article 329(b). Ifthe petition presented to the court “calls in question an election”the bar of Article 329(b) is attracted. Else it is not.

32. For convenience’s sake we would now generally sum up ourconclusions by partly restating what the two Constitution Bencheshave already said and then adding by clarifying what followstherefrom in view of the analysis made by us hereinabove:

(1)If an election, (the term election being widely interpretedso as to include all steps and entire proceedings commencingfrom the date of notification of election till the date ofdeclaration of result) is to be called in question and whichquestioning may have the effect of interrupting, obstructingor protracting the election proceedings in any manner, theinvoking of judicial remedy has to be postponed till after thecompleting of proceedings in elections.

(2)Any decision sought and rendered will not amount to “callingin question an election” if it subserves the progress of theelection and facilitates the completion of the election.Anything done towards completing or in furtherance of theelection proceedings cannot be described as questioning theelection.

(3)Subject to the above, the action taken or orders issued byElection Commission are open to judicial review on the well-

settled parameters which enable judicial review of decisionsof statutory bodies such as on case of mala fide orarbitrary exercise of power being made out or the statutorybody being shown to have acted in breach of law.

(4)Without interrupting, obstructing or delaying the progressBof the election proceedings, judicial intervention is availableif assistance of the court has been sought for merely tocorrect or smoothen the progress of the electionproceedings, to remove the obstacles therein, or to preservea vital piece of evidence if the same would be lost ordestroyed or rendered irretrievable by the time the resultsCare declared and stage is set for invoking the jurisdiction ofthe court.

(5)The court must be very circumspect and act with cautionwhile entertaining any election dispute though not hit by thebar of Article 329(b) but brought to it during the pendencyDof election proceedings. The court must guard against anyattempt at retarding, interrupting, protracting or stalling ofthe election proceedings. Care has to be taken to see thatthere is no attempt to utilise the court’s indulgence by filinga petition outwardly innocuous but essentially subterfugeor pretext for achieving an ulterior or hidden end. NeedlessEto say that in the very nature of the things the court wouldact with reluctance and shall not act, except on clear andstrong case for its intervention having been made out byraising the pleas with particulars and precision andsupporting the same by necessary material.”F46. In Kurapati Maria Das v. Dr. Ambedkar Seva Samajan,(2009) 7 SCC 387, the validity of caste certificate came up fordetermination in writ petition that was filed which challenged municipalelections made to reserved constituency. In this context, this courtheld:

G“18. Regarding the bar of jurisdiction under Article 243-ZG(b),learned counsel Shri Gagan Gupta submitted that the decisionrelied upon by the High Court as K. Venkatachalam v. A.Swamickan [(1999) 4 SCC 526] was applicable and, therefore, itcould not be said that there was bar to the entertainment of thewrit petition under Article 226. Learned counsel supported theHfactual findings recorded by the High Court to the effect that the

appellant was Christian and, therefore, could not claim the statusof person belonging to the Scheduled Caste, more particularly,caste “Mala”.

19. In the first place, it would be better to consider as to whetherthe bar under Article 243-ZG(b) is an absolute bar. The articlereads thus:

“243-ZG. (b) no election to any Municipality shall be called inquestion except by an election petition presented to suchauthority and in such manner as is provided for by or underany law made by the legislature of State.”

At least from the language of clause (b), it is clear that the bar isabsolute. Normally, where such bar is expressed in negativelanguage as is the case here, it has to be held that the tone ofclause (b) is mandatory and the bar created therein is absolute.

20. This Court in its recent decisions has held the bar to be absolute.First such decision is Jaspal Singh Arora v. State of M.P. [(1998)9 SCC 594]. In this case the election of the petitioner as thePresident of the Municipal Council was challenged by writpetition under Article 226, which was allowed setting aside theelection of the petitioner. In para 3 of this judgment, the Courtobserved:

“3. … it is clear that the election could not be called in questionexcept by an election petition as provided under that Act. Thebar to interference by courts in electoral matters contained inArticle 243-ZG of the Constitution was apparently overlookedby the High Court in allowing the writ petition. Apart from thebar under Article 243-ZG, on settled principles interferenceunder Article 226 of the Constitution for the purpose of settingaside election to municipality was not called for because ofthe statutory provision for election petition….”21. The second such decision is Gurdeep SinghDhillon v. Satpal [(2006) 10 SCC 616]. In that decision, afterquoting Article 243-ZG(b) the Court observed that the shortcut offiling the writ petition and invoking constitutional jurisdiction ofthe High Court under Articles 226/227 was not permissible andthe only remedy available to challenge the election was by raisingthe election dispute under the local statute.

A22. There is no dispute that Rule 1 of the Andhra PradeshMunicipalities (Decision on Election Disputes) Rules, 1967,specifically provides for challenging the election of Councillor orChairman. It was tried to be feebly argued that this was petitionfor quo warranto and not only for challenging the election of theappellant herein. This contention is clearly incorrect. When weBsee the writ petition filed before the High Court, it clearly suggeststhat what is challenged is the election. In fact the Prayer clauses(b) and (c) are very clear to suggest that it is the election of theappellant which is in challenge.”

47. In W.B. State Election Commission v. Communist Party ofCIndia (Marxist) (supra), the West Bengal State Commission issuedcertain directions extending the last date for submitting nominations byone day, after which the said order was recalled on the next day. Alearned single Judge of the High Court delivered judgment in whichthe order cancelling the extension was quashed and the commissionDwas directed to issue fresh notification extending the date for filingnomination. In obedience to this order, the SEC issued notificationextending the date for filing of nominations on 21.04.2018. Writ petitionswere then filed which were dismissed by learned Single Judge, whodeclined to interfere with the election process. Ultimately, after freshwrit petitions were moved before single Judge of the Calcutta High

ECourt, the single Judge declined to give any further directions, moreparticularly, that the SEC be made to accept nominations already filed inelectronic forms. The Division Bench, while disposing of the appeal,directed the SEC to accept nominations in electronic forms by thosecandidates who had submitted them on or before 3.00 p.m. on 23.04.2018.

FAfter setting out the relevant provisions of the Panchayat Elections Act,this Court held:

“28. The Panchayat Elections Act is complete code in regardto the conduct of the poll and for the resolution of disputesconcerning the validity of the election. Article 243-K entrusts theGsuperintendence, direction and control over the conduct of allelections to the panchayats in the State Election Commission.Clause (b) of Article 243-O stipulates thus:

“243-O. Bar to interference by courts in electoral matters.—Notwithstanding anything in this Constitution—

(b) no election to any Panchayat shall be called in questionexcept by an election petition presented to such authority andin such manner as is provided for by or under any law made bythe legislature of State.”

29. There is merit in the submission that the discipline which ismandated by the provisions of the Constitution and enforced bythe enabling State law on the subject must be maintained. Anydispute in regard to the validity of the election has to be espousedby adopting remedy which is known to law, namely, through anelection petition. It is at the trial of an election petition that factualdisputes can be resolved on the basis of evidence. This principlehas been consistently adhered to in decisions of this court. InBoddula Krishnaiah v. State Election Commr., A.P., (1996) 3 SCC416, three-Judge Bench adverted to the decisions of theConstitution Bench in N.P. Ponnuswami v. Returning Officer,Namakkal Constituency, 1952 SCR 218 in Lakshmi CharanSen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689. Afterreferring to Ponnuswami, it was observed:“8. In N.P. Ponnuswami v. Returning Officer, NamakkalConstituency Constitution Bench of this court had held thathaving regard to the important functions which the legislatureshave to perform in democratic countries, it has always beenrecognised to be matter of first importance that electionsshould be concluded as early as possible according to time-schedule and all controversial matters and all disputes arisingout of elections should be postponed till after the elections areover so that the election proceedings may not be undulyretarded or protracted. In conformity with the principle, thescheme of the election law is that no significance should beattached to anything which does not affect the “election”; andif any irregularities are committed while it is in progress andthey belong to the category or class which under the law bywhich elections are governed, would have the effect of vitiatingthe “election”; and enable the person affected to call it inquestion, they should be brought up before Special Tribunalby means of an election petition and not be made the subject

of dispute before any court while the election is in progress.”The binding principle must be followed.xxx xxx xxx

A33. For these reasons, we are of the view that challenges in regardto the validity of the elections to the uncontested seats in thepanchayats, Panchayat Samitis and Zila Parishads must also bepursued in election petitions under Section 79(1) of the PanchayatElections Act. We leave it open to any person aggrieved to raisea dispute in the form of an election petition in accordance with theBprovisions contained in the Panchayat Elections Act. In exerciseof the power conferred by Article 142, we direct that the periodof 30 days for filing election petitions in respect of the uncontestedseats shall commence from the date of the publication of the resultsin the Official Gazette.”

48. recent judgment of 3 learned Judges in Laxmibai v.Collector, (supra), comes nearer home when it deals with municipalelections, and holds as follows:

“42. This court again examined the question in respect of raisinga dispute relating to an election of local body before the HighCourt by way of writ petition under Article 226 of the Constitutionof India in judgment reported as Harnek Singh v. Charanjit Singh[Harnek Singh v. Charanjit Singh, (2005) 8 SCC 383]. It was heldas under:

“15. Prayers (b) and (c) aforementioned, evidently, could nothave been granted [Charanjit Singh v. State of Punjab, 2003SCC OnLine P&H 1226] in favour of the petitioner by theHigh Court in exercise of its jurisdiction under Article 226 ofthe Constitution of India. It is true that the High Court exercisesa plenary jurisdiction under Article 226 of the Constitution ofIndia. Such jurisdiction being discretionary in nature may notbe exercised inter alia keeping in view the fact that an efficaciousalternative remedy is available therefor. (See Sanjana M. Wigv. Hindustan Petroleum Corpn. Ltd. (2005) 8 SCC 242 )

16. Article 243-O of the Constitution of India mandates that allelection disputes must be determined only by way of an electionpetition. This by itself may not per se bar judicial review whichis the basic structure of the Constitution, but ordinarily suchjurisdiction would not be exercised. There may be some caseswhere writ petition would be entertained but in this case weare not concerned with the said question.

17. In C. Subrahmanyam [C. Subrahmanyam v. K.Ramanjaneyullu, (1998) 8 SCC 703], three-Judge Bench ofthis court observed that writ petition should not be entertainedwhen the main question which fell for decision before the HighCourt was non-compliance with the provisions of the Act whichwas one of the grounds for an election petition in terms ofRule 12 framed under the Act.”

43. Section 10-A of the 1959 Act and Section 9-A of the 1961Act read with Articles 243-K and 243-O, are pari materia withArticle 324 of the Constitution of India. In view of the judgmentsreferred, we find that the remedy of an aggrieved person acceptingor rejecting nomination of candidate is by way of an electionpetition in view of the bar created under Section 15-A of the 1959Act. The said Act is complete code providing machinery forredressal to the grievances pertaining to election as contained inSection 15 of the 1959 Act. The High Court though exercisesextraordinary jurisdiction under Article 226 of the Constitution ofIndia but such jurisdiction is discretionary in nature and may notbe exercised in view of the fact that an efficacious alternativeremedy is available and more so exercise restraint in terms ofArticle 243-O of the Constitution of India. Once alternate machineryis provided by the statute, the recourse to writ jurisdiction is notan appropriate remedy. It is prudent discretion to be exercisedby the High Court not to interfere in the election matters, especiallyafter declaration of the results of the elections but relegate theparties to the remedy contemplated by the statute. In view of theabove, the writ petition should not have been entertained by theHigh Court. However, the order of the High Court that the appellanthas not furnished the election expenses incurred on the date ofelection does not warrant any interference.”

Powers of the State Election Commission under Article243K r/w 243ZA

49. In Election Commission of India v. Shivaji, (supra), thiscourt after referring to Ponnuswami’s case then referred to the powersof the Election Commission under Article 324 as follows:

“6. ………... If there was any such error committed in the courseof the election process the Election Commission had the authorityto set it right by virtue of power vested in it under Article 324 of

the Constitution as decided in Mohinder Singh Gill v. Chief ElectionCommissioner [(1978) 1 SCC 405] and to see that the electionprocess was completed in fair manner.”

50. Similarly, in Digvijay Mote v. Union of India, (1993) 4 SCC175, this court referred to the powers of the Election Commission underBArticle 324 of the Constitution as follows:

“8. The conduct of election is in the hands of the ElectionCommission which has the power of superintendence, directionand control of elections vested in it as per Article 324 of theConstitution. Consequently, if the Election Commission is of theCopinion that having regard to the disturbed conditions of State ora part thereof, free and fair elections could not be held it maypostpone the same. Accordingly, on account of unsettled conditions,the elections in the States of Assam & Jammu and Kashmir couldbe postponed.

9. However, it has to be stated this power is not unbridled. Judicialreview will still be permissible, over the statutory body exercisingits functions affecting public law rights.

xxx xxx xxx

14. The resultant position is that it cannot be stated that the exerciseof power under Article 324 is not altogether unreviewable. TheEreview will depend upon the facts and circumstances of eachcase.”

51. In Kishansing Tomar v. Municipal Corpn., Ahmedabad(supra), Constitution Bench of this Court clearly set out the powers ofthe State Election Commissions under the Constitution as follows:F

“22. In our opinion, the entire provision in the Constitution wasinserted to see that there should not be any delay in the constitutionof the new municipality every five years and in order to avoid themischief of delaying the process of election and allowing thenominated bodies to continue, the provisions have been suitablyGadded to the Constitution. In this direction, it is necessary for allthe State Governments to recognise the significance of the StateElection Commission, which is constitutional body and it shallabide by the directions of the Commission in the same manner inwhich it follows the directions of the Election Commission of IndiaHduring the elections for Parliament and the State Legislatures. In

fact, in the domain of elections to the panchayats and the municipalbodies under Part IX and Part IX-A for the conduct of the electionsto these bodies they enjoy the same status as the ElectionCommission of India.

23. In terms of Article 243-K and Article 243-ZA(1) the samepowers are vested in the State Election Commission as the ElectionCommission of India under Article 324. The words in the formerprovisions are in pari materia with the latter provision.

24. The words, “superintendence, direction and control” as wellas “conduct of elections” have been held in the “broadest of terms”by this court in several decisions including Special Reference No.1 of 2002, In re [Special Reference No. 1 of 2002, In re, (2002) 8SCC 237] and Mohinder Singh Gill case [Mohinder Singh Gill v.Chief Election Commr., (1978) 1 SCC 405] and the question iswhether this is equally relevant in respect of the powers of theState Election Commission as well.

25. From reading of the said provisions it is clear that the powersof the State Election Commission in respect of conduct of electionsis no less than that of the Election Commission of India in theirrespective domains. These powers are, of course, subject to thelaw made by Parliament or by the State Legislatures, providedthe same do not encroach upon the plenary powers of the saidElection Commissions.

26. The State Election Commissions are to function independentof the State Governments concerned in the matter of their powersof superintendence, direction and control of all elections andpreparation of electoral rolls for, and the conduct of, all electionsto the panchayats and municipalities.

27. Article 243-K(3) also recognises the independent status ofthe State Election Commission. It states that upon request madein that behalf the Governor shall make available to the State ElectionCommission “such staff as may be necessary for the dischargeof the functions conferred on the State Election Commission byclause (1)”. It is accordingly to be noted that in the matter of theconduct of elections, the Government concerned shall have torender full assistance and cooperation to the State ElectionCommission and respect the latter’s assessment of the needs inorder to ensure that free and fair elections are conducted.

832SUPREME COURT REPORTS

A28. Also, for the independent and effective functioning of theState Election Commission, where it feels that it is not receivingthe cooperation of the State Government concerned in dischargingits constitutional obligation of holding the elections to the panchayatsor municipalities within the time mandated in the Constitution, itwill be open to the State Election Commission to approach theBHigh Courts, in the first instance, and thereafter the SupremeCourt for writ of mandamus or such other appropriate writdirecting the State Government concerned to provide all necessarycooperation and assistance to the State Election Commission toenable the latter to fulfil the constitutional mandate.”

52. Given the fact that the scheme contained in Part XV is bodilylifted into the provisions contained in Part IX-A, the powers exercisedby the SEC under Article 243ZA(1) are the same as those vested in theElection Commission of India under Article 324 of the Constitution ofIndia. As has been pointed out in Mohinder Singh Gill (supra) and theDaforesaid decisions, the entire supervision and conduct of elections tomunicipalities is vested in constitutional authority that is the SEC whichis to supervise and conduct elections by giving orders and directions tothe State Government as well as authorities that are set up under Statestatutes for the purpose of supervision and conduct of elections. Thepower thus conferred by the Constitution is power given to the SECEnot only to carry out the constitutional mandate but also to fill in gapswhere there is no law or rule governing particular situation during theconduct of an election. The SEC, being an independent constitutionalfunctionary, is not only to be obeyed by the State Government and theother authorities under local State statutes, but can also approach theFwrit court under Articles 226 and 227 of the Constitution of India toeither enforce directions or orders issued by it or to ask for appropriateorders from High Courts in that behalf.

Bar contained in Articles 243ZG(a) / 329(a).

53. So far as delimitation and allocation of seats is concerned, theGbar contained in Article 243ZG(a) operates together with the non-obstanteclause contained therein to bar all courts from interfering with Statestatutes dealing with delimitation and allocation of seats, just as is thebar contained in Article 329(a) of the Constitution. In Lakshmi CharanSen v. A.K.M. Hassan Uzzaman (supra), Chandrachud,CJ. speakingfor the majority of Constitution Bench of this court, held that theH

delimitation process and the making of electoral rolls is independent ofthe process of any particular election and thus held:

“27. …In Rampakavi Rayappa Belagali [(1970) 3 SCC 147], itwas held that the scheme of the Act of 1950 and the amplitude ofits provisions show that the entries made in an electoral roll of aconstituency can only be challenged in accordance with themachinery provided by the Act and not in any other manner orbefore any other forum unless, some question of violation of theprovisions of the Constitution is involved. In Mohinder Singh Gill[(1978) 1 SCC 405], Krishna Iyer, J., speaking for the ConstitutionBench, has considered at great length the scope and meaning ofArticle 329(b) of the Constitution. Describing that article as the“Great Wall of China”, the learned Judge posed the questionwhether it is so impregnable that it cannot be bypassed even byArticle 226. Observing that “every step from start to finish of thetotal process constitutes ‘election’, not merely the conclusion orculmination”, the judgment concludes thus:

“The rainbow of operations, covered by the compendiousexpression ‘election’, thus commences from the initialnotification and culminates in the declaration of the return of acandidate.”

28. We have expressed the view that preparation and revision ofelectoral rolls is continuous process, not connected with anyparticular election. It may be difficult, consistently with that view,to hold that preparation and revision of electoral rolls is part ofthe “election” within the meaning of Article 329(b). Perhaps, asstated in Halsbury in the passage extracted in Ponnuswami [AIR1952 SC 64], the facts of each individual case may have to beconsidered for determining the question whether any particularstage can be said to be part of the election process in that case.In that event, it would be difficult to formulate proposition whichwill apply to all cases alike.”

54. This judgment was followed by another Constitution Bench inIndrajit Barua v. Election Commission of India (supra), the Courtholding:

“12. …We are not prepared to take the view that preparation ofelectoral rolls is also process of election. We find support forour view from the observations of Chandrachud, C.J. in Lakshmi

834SUPREME COURT REPORTS

ACharan Sen case [AIR 1957 SC 304] that “it may be difficult,consistently with that view, to hold that preparation and revisionof electoral roll, is part of ‘election’ within the meaning of Article329(b)”. In suitable case challenge to the electoral roll for notcomplying with the requirements of the law may be entertainedsubject to the rule indicated in Ponnuswami case [(1985) 4 SCCB689]. But the election of candidate is not open to challenge onthe score of the electoral roll being defective. Holding the electionto the Legislature and holding them according to law are bothmatters of paramount importance. Such elections have to be heldalso in accordance with time bound programme contemplatedCin the Constitution and the Act. The proviso added in Section 22(2)of the Act of 1950 is intended to extend cover to the electoral rollsin eventualities which otherwise might have interfered with thesmooth working of the programme. These are the reasons forwhich we came to the conclusion that the electoral roll of 1979had not been vitiated and was not open to be attacked as invalid.”D

55. In Meghraj Kothari v. Delimitation Commission (supra),this court dealt with Sections 8, 9 and 10 of the Delimitation CommissionAct, 1962, and the bar contained in Article 329(a) as follows:

“In this case we are not, faced with that difficulty becausethe Constitution itself provides under Article 329(a) that

any law relating to the delimitation of constituencies etc.made or purporting to be made under Article 327 shall notbe called in question in any court. Therefore an order underSection 8 or 9 and published under Section 10(1) would notbe saved merely because of the use of the expression “shallFnot be called in question in any court”. But if by thepublication of the order in the Gazette of India it is to betreated as law made under Article 327, Article 329 wouldprevent any investigation by any court of law.”

(at page 408)

xxx xxx xxxG

“In our view, therefore, the objection to the delimitation ofconstituencies could only be entertained by the Commissionbefore the date specified. Once the orders made by theCommission under Sections 8 and 9 were published in theGazette of India and in the Official Gazettes of the StatesHconcerned, these matters could no longer be reagitated in

court of law. There seems to be very good reason behindsuch provision. If the orders made under Sections 8 and 9were not to be treated as final, the effect would be that anyvoter, if he so wished, could hold up an election indefinitelyby questioning the delimitation of the constituencies fromcourt to court. Section 10(2) of the Act clearly demonstratesthe intention of the Legislature that the orders under Sections8 and 9 published under Section 10(1) were to be treatedas law which was not to be questioned in any court.

It is true that an order under Section 8 or 9 published underSection 10(1) is not part of an Act of Parliament, but itseffect is to be the same.”

(at pages 410,411)

xxx xxx xxx

“In the instant case the provision of Section 10(4) of theAct puts orders under Sections 8 and 9 as published underSection 10(1) in the same street as law made byParliament itself which, as we have already said, could onlybe done under Article 327, and consequently the objectionthat the notification was not to be treated as law cannot begiven effect to.”

(at page 415)

56. This judgment was followed in Assn. of Residents of Mhow(ROM) v. Delimitation Commission of India, (2009) 5 SCC 404, whichdealt with Sections 9 and 10 of the Delimitation Act, 2002. The Courtheld:

“35. This court in Pradhan [1995 Supp (2) SCC 305] was notconsidering any similar issue as the one that has arisen for ourconsideration in the present case. This court did not take anyview that the proposals in respect of each constituency shall haveto be treated as an independent proposal and the Commission’spower to determine delimitation of the constituencies is withreference to each constituency. The objections and/or suggestions,as the case may be, are required to be taken into considerationtreating the proposals as for the whole of the State and delimitationof the constituencies with reference to State as unit.

36. In Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR400] Constitution Bench of this court while interpreting Sections

8, 9 and 10 of the Delimitation Commission Act, 1962 which arein pari materia with the provisions of the present Act, observed:

“19. In our view, therefore, the objection to the delimitation ofconstituencies could only be entertained by the Commissionbefore the date specified. Once the orders made by theCommission under Sections 8 and 9 were published in theGazette of India and in the Official Gazettes of the Statesconcerned, these matters could no longer be reagitated in acourt of law. There seems to be very good reason behind sucha provision. If the orders made under Sections 8 and 9 werenot to be treated as final, the effect would be that any voter, ifhe so wished, could hold up an election indefinitely byquestioning the delimitation of the constituencies from court tocourt. Section 10(2) of the Act clearly demonstrates theintention of the legislature that the orders under Sections 8 and9 published under Section 10(1) were to be treated as lawwhich was not to be questioned in any court.

20. It is true that an order under Section 8 or 9 published underSection 10(1) is not part of an Act of Parliament, but its effectis to be the same.”

37. The Constitution Bench went to the extent of saying that:(Meghraj Kothari case [(1967) 1 SCR 400]

“18. An examination of Sections 8 and 9 of the Act shows thatthe matters therein dealt with were not to be subject to thescrutiny of any court of law. …***

32. … the provision of Section 10(4) of the Act puts ordersunder Sections 8 and 9 as published under Section 10(1) in thesame street as law made by Parliament itself which, … couldonly be done under Article 327, and consequently the objectionthat the notification was not to be treated as law cannot begiven effect to.”

GConclusion

38. In the present case, the Commission finally determined thedelimitation of parliamentary constituencies in the State of MadhyaPradesh after considering all the objections and suggestionsreceived by it before the specified date and got published its ordersin the Gazette of India and in the Official Gazette of the State as

is required under Section 10(1) of the Act. The orders so publishedputs them “in the same street as law made by Parliament itself”.Consequently that notification is to be treated as law and requiredto be given effect to.”

57. In Rampakavi Rayappa Belagali v. B.D. Jatti, (1970) 3SCC 147, the Court dealt with the scheme of the Representation ofPeople Act, 1950 and its inter-relation with Article 329(a) as follows:

“7. …The entire scheme of the Act of 1950 and theamplitude of its provisions show that the entries made in anElectoral Roll of constituency can only be challenged inaccordance with the machinery provided by it and not inany other manner or before any other forum unless somequestion of violation of the provisions of the Constitution isinvolved. …..

8. The other provisions relating to election are contained inPart XV of the Constitution. Article 324 deals with thesuperintendence, direction and control of elections whichare vested in the Election Commission. Article 325 declaresthat no person shall be ineligible for inclusion in an ElectoralRoll on account only of religion, race, caste, sex or any ofthem. Article 326 says that the elections to the House ofPeople and the Legislative Assemblies of State shall be onthe basis of adult franchise. Article 327 gives power to theParliament to make provisions with respect to elections toLegislatures. Article 329 bars the interference of courts inelectoral matters. By virtue of that Article no election shallbe called in question except by an election petition. It isabundantly clear that in the present case the questionwhether Respondent 1 was ordinarily resident in JamkhandiConstituency during the material period and was entitled tobe registered in the Electoral Roll could not be the subject-matter of enquiry except in accordance with the provisionsof the Act of 1950. The grounds on which the election canbe declared to be void under the Act are set out in Section100 of the Act. Clause (d) is “that the result of the election,insofar as it concerns returned candidate, has beenmaterially affected—(2) ………………(i)……..….................... (ii) .................................. (iii)

…………….. (iv) by any non-compliance with the

Aprovisions of the Constitution or of this Act or of any rulesor orders made under this Act”. Nothing could be clearerthan the ambit of this provision. It does not entitle the courtin an election petition to set aside any election on the groundof non-compliance with the provisions of the Act of 1950or of any rules made thereunder with the exception ofBSection 16.”

58. However, in State of U.P. v. Pradhan Sangh Kshettra Samiti,1995 Supp (2) SCC 305, division bench of this Court delineated thescope of interference so far as delimitation of Panchayat areas isconcerned, as follows:

“44. It is for the Government to decide in what manner thepanchayat areas and the constituencies in each panchayatarea will be delimited. It is not for the court to dictate themanner in which the same would be done. So long as thepanchayat areas and the constituencies are delimited inconformity with the constitutional provisions or withoutcommitting breach thereof, the courts cannot interferewith the same. xxx

45. What is more objectionable in the approach of the Highcourt is that although clause (a) of Article 243-O of theConstitution enacts bar on the interference by the courtsEin electoral matters including the questioning of the validityof any law relating to the delimitation of the constituenciesor the allotment of seats to such constituencies made orpurported to be made under Article 243-K and the electionto any panchayat, the High Court has gone into the questionFof the validity of the delimitation of the constituencies andalso the allotment of seats to them. We may, in thisconnection, refer to decision of this court in MeghrajKothari v. Delimitation Commission [(1967) 1 SCR 400].In that case, notification of the Delimitation Commissionwhereby city which had been general constituency wasGnotified as reserved for the Scheduled Castes. This waschallenged on the ground that the petitioner had right tobe candidate for Parliament from the said constituencywhich had been taken away. This court held that theimpugned notification was law relating to the delimitationHof the constituencies or the allotment of seats to such

constituencies made under Article 327 of the Constitution,and that an examination of Sections 8 and 9 of theDelimitation Commission Act showed that the matterstherein dealt with were not subject to the scrutiny of anycourt of law. There was very good reason for such aprovision because if the orders made under Sections 8 and9 were not to be treated as final, the result would be thatany voter, if he so wished, could hold up an electionindefinitely by questioning the delimitation of theconstituencies from court to court. Although an order underSection 8 or Section 9 of the Delimitation Commission Actand published under Section 10(1) of that Act is not part ofan Act of Parliament, its effect is the same. Section 10(4)of that Act puts such an order in the same position as lawmade by Parliament itself which could only be made by itunder Article 327. If we read Articles 243-C, 243-K and243-O in place of Article 327 and Sections 2(kk), 11-F and12-BB of the Act in place of Sections 8 and 9 of theDelimitation Act, 1950, it will be obvious that neither thedelimitation of the panchayat area nor of the constituenciesin the said areas and the allotments of seats to theconstituencies could have been challenged nor the courtcould have entertained such challenge except on the groundthat before the delimitation, no objections were invited andno hearing was given. Even this challenge could not havebeen entertained after the notification for holding theelections was issued. The High Court not only entertainedthe challenge but has also gone into the merits of the allegedgrievances although the challenge was made after thenotification for the election was issued on 31-8-1994.”

59. The judgment in Anugrah Narain Singh v. State of U.P.,(1996) 6 SCC 303 is instructive in that it deals with local law namelythe U.P. Nagar Maha Palika Adhiniyam, 1959, in the context of challengesmade to orders under that Act. Meghraj’s case was distinguished bythis court as follows:

“24. The validity of Sections 6-A, 31, 32 and 33 of the U.P. Actdealing with delimitation of wards cannot be questioned in courtof law because of the express bar imposed by Article 243-ZG ofthe Constitution. Section 7 contains rules for allotment of seats to

Athe Scheduled Castes, the Scheduled Tribes and the BackwardClass people. The validity of that section cannot also be challenged.That apart, in the instant case, when the delimitation of the wardswas made, such delimitation was not challenged on the ground ofcolourable exercise of power or on any other ground ofarbitrariness. Any such challenge should have been made as soonBas the final order was published in the Gazette after objections tothe draft order were considered and not after the notification forholding of the elections was issued. As was pointed out in LakshmiCharan Sen case [(1985) 4 SCC 689], that the fact that certainclaims and objections had not been disposed of before the finalCorder was passed, cannot arrest the process of election.

25. In this connection, it may be necessary to mention that thereis one feature to be found in the Delimitation Commission Act,1962 which is absent in the U.P. Act. Section 10 of the Act of1962 provided that the Commission shall cause each of its orderDmade under Sections 8 and 9 to be published in the Gazette ofIndia and in the Official Gazettes of the States concerned. Uponpublication in the Gazette of India every such order shall have theforce of law and shall not be called in question in any court.Because of these specific provisions of the DelimitationCommission Act, 1962, in the case of Meghraj Kothari v.EDelimitation Commission [AIR 1967 SC 669], this court heldthat notification of orders passed under Sections 8 and 9 of thatAct had the force of law and therefore, could not be assailed inany court of law because of the bar imposed by Article 329. TheU.P. Act of 1959, however, merely provides that the draft orderFof delimitation of municipal areas shall be published in the OfficialGazette for objections for period of not less than seven days.The draft order may be altered or modified after hearing theobjections filed, if any. Thereupon, it shall become final. It doesnot lay down that such an order upon reaching finality will havethe force of law and shall not be questioned in any court of law.GFor this reason, it may not be possible to say that such an ordermade under Section 32 of the U.P. Act has the force of law and isbeyond challenge by virtue of Article 243-ZG. But any suchchallenge should be made soon after the final order is published…”

60. In Dravida Munnetra Kazhagam v. State of T.N. (supra),Hthis Court dealt with certain interlocutory applications that were filed

seeking directions for compliance with the constitutional mandateconcerning elections to local bodies. This Court dealt with contentionsraised by the parties before it as follows:

“10. It, thus, emerges that before the election process could beginas per the State Election Commission’s Press Release dated 2-12-2019, the State of Tamil Nadu increased the number of districtsfrom 31 to 39 and also restructured various talukas. However,with regard to posts of Chairman and Vice-Chairman of DistrictPanchayat Councils, elections are still sought to be held only for31 posts. This resultant incongruity has prompted the appellantsto file these applications with prayers to strike down theNotification dated 2-12-2019; hold elections for the entire Statecomprising all 39 revenue districts; and conduct such local bodyelections only after completion of all legal formalities i.e. afterdelimitation of the newly carved districts. specific direction hasalso been prayed for, to compel the respondents to first carry outdelimitation, reservation, rotation processes and fulfil all other legalrequirements before notifying or conducting elections of anypanchayat at the village, intermediate or district level.11. Having heard the learned counsel for the parties at aconsiderable length and after an in-depth analysis of variousstatutory provisions as well as the constitutional scheme underPart IX which envisages democratisation of grass-root leveladministration, we are of the view that, as per Article 243-B,panchayats have to mandatorily be constituted in State at thevillage, intermediate and district levels. Article 243-C requires theState, as far as is practicable, to maintain similar ratio betweenthe population residing within the territory of particular panchayatand the number of seats allocated to it, across all panchayats inthe State. Further, each panchayat must be divided into territorialconstituencies and per Article 243-D, seats in proportion to theirpopulation must be reserved for Scheduled Castes and ScheduledTribes in each panchayat.

12. It is, thus, clear that the constitutional object of Part IX cannotbe effectively achieved unless the delimitation exercise forconstitution of local bodies at all levels is properly undertaken.Such exercise in the State of Tamil Nadu must keep in view thecriteria for delimitation of wards prescribed under the Tamil NaduLocal Bodies Delimitation Regulations, 2017 (formulated under

the Tamil Nadu Delimitation Commission Act, 2017), which criteriamust itself not be contrary to Article 243-C read with Article 243-B(1) of the Constitution.

13. Noticing how at the completion of the delimitation processthere were only 31 revenue districts, but despite subsequentincrease in number of districts to 39, no fresh delimitation exercisehas been undertaken, it is clear that the State Government cannotfulfil the aforestated constitutional mandate. There is no identifieddata elucidating population proportions and, hence, requisitereservation for Scheduled Castes and Scheduled Tribes cannotbe provided for, both in re village panchayat wards or Chairman/Vice-Chairman of District bodies. We, hence, have no doubt thatthe election process as notified by the State Election Commissionon 2-12-2019, in respect of the newly constituted nine districtscannot be held unless fresh delimitation exercise in respect theretois first completed. The State Government cannot justify holdinglocal body elections of these nine districts by relying upon thisCourt’s order dated 18-11-2019 [C.R. Jayasukin v. T.N. StateElection Commission, 2019 SCC OnLine SC 1664] as the saidorder itself mandates notification of elections only after completing“all legal formalities”.

14. The contention of the respondents that the present proceedingsamount to “calling in question an election” and hence not beingmaintainable in view of the express constitutional embargos ofArticles 243-O and 243-ZG does not impress us for the presentproceedings are only to further the expeditious completion ofprerequisites of fair election. Hence, the following ratio of acoordinate Bench in Election Commission of India v. AshokKumar, (2000) 8 SCC 216 squarely applies to the present case:

“32. … (2) Any decision sought and rendered will not amountto “calling in question an election” if it subserves the progressof the election and facilitates the completion of the election.Anything done towards completing or in furtherance of theelection proceedings cannot be described as questioning theelection.

(3) Subject to the above, the action taken or orders issued byElection Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions

of statutory bodies such as on case of mala fide or arbitraryexercise of power being made out or the statutory body beenshown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progressof the election proceedings, judicial intervention is available ifassistance of the court has been sought for merely to corrector smoothen the progress of the election proceedings, to removethe obstacles therein, or to preserve vital piece of evidence ifthe same would be lost or destroyed or rendered irretrievableby the time the results are declared and stage is set for invokingthe jurisdiction of the court.”

61. Accordingly, directions were issued ordering the respondents,including the Delimitation Commission, to delimit 9 newly constituteddistricts in accordance with law and only thereafter hold elections fortheir Panchayats at the village, intermediate and district levels within aperiod of 4 months.

62. Shri Tushar Mehta, learned Solicitor General has exhorted usto hold that this judgment is per incuriam in that it flies in the face of theearlier decisions of this Court. We find nothing in this judgment as flyingin the face of the earlier judgments of this court. On the contrary, theCourt extracts the ratio in Ashok Kumar’s case (supra) and thereafterissues directions to the authorities concerned.

63. conspectus of the aforesaid judgments in the context ofmunicipal elections would yield the following results.

I.Under Article 243 ZG(b), no election to any municipalitycan be called in question except by an election petitionpresented to Tribunal as is provided by or under any lawmade by the Legislature of State. This would mean thatfrom the date of notification of the election till the date ofthe declaration of result judicial hands-off is mandated bythe non-obstante clause contained in Article 243ZG debarringthe writ court under Articles 226 and 227 from interferingonce the election process has begun until it is over. Theconstitutional bar operates only during this period. It istherefore matter of discretion exercisable by writ courtas to whether an interference is called for when the electoralprocess is “imminent” i.e, the notification for elections isyet to be announced.

II.If, however, the assistance of writ court is required insubserving the progress of the election and facilitating itscompletion, the writ court may issue orders provided thatthe election process, once begun, cannot be postponed orprotracted in any manner.

III.The non-obstante clause contained in Article 243ZG doesBnot operate as bar after the election tribunal decides anelection dispute before it. Thus, the jurisdiction of the HighCourts under Articles 226 and 227 and that of the SupremeCourt under Article 136 of the Constitution of India is notaffected as the non-obstante clause in Article 243ZGCoperates only during the process of election.

IV.Under Article 243ZA(1), the SEC is in overall charge ofthe superintendence, direction and control of the preparationof electoral rolls, and the conduct of all municipal elections.If there is constitutional or statutory infraction by anyauthority including the State Government either before orDduring the election process, the SEC by virtue of its powerunder Article 243ZA(1) can set right such infraction. Forthis purpose, it can direct the State Government or otherauthority to follow the Constitution or legislative enactmentor direct such authority to correct an order which infractsEthe constitutional or statutory mandate. For this purpose, itcan also approach writ court to issue necessary directionsin this behalf. It is entirely upto the SEC to set the electionprocess in motion or, in cases where constitutional orstatutory provision is not followed or infracted, to postponethe election process until such illegal action is remedied.FThis the SEC will do taking into account the constitutionalmandate of holding elections before the term of amunicipality or municipal council is over. In extraordinarycases, the SEC may conduct elections after such term isover, only for good reason.

GV.Judicial review of State Election Commission’s order isavailable on grounds of review of administrative orders.Here again, the writ court must adopt hands-off policywhile the election process is on and interfere either beforethe process commences or after such process is completedunless interfering with such order subserves and facilitatesHthe progress of the election.

VI.Article 243ZA(2) makes it clear that the law made by theAlegislature of State, making provision with respect tomatters relating to or in connection with elections tomunicipalities, is subject to the provisions of the Constitution,and in particular Article 243T, which deals with reservationof seats.

VII.The bar contained in Article 243ZG(a) mandates that therebe judicial hands-off of the writ court or any court inquestioning the validity of any law relating to delimitation ofconstituency or allotment of seats to such constituency madeor purporting to be made under Article 243ZA. This is byvirtue of the non-obstante clause contained in Article 243ZG.The statutory provisions dealing with delimitation andallotment of seats cannot therefore be questioned in anycourt. However, orders made under such statutory provisionscan be questioned in courts provided the concerned statutedoes not give such orders the status of statutory provision.

VIII. Any challenge to orders relating to delimitation or allotmentof seats including preparation of electoral rolls, not beingpart of the election process as delineated above, can alsobe challenged in the manner provided by the statutoryprovisions dealing with delimitation of constituencies andallotment of seats to such constituencies.

IX.The constitutional bar of Article 243ZG(a) applies only tocourts and not the State Election Commission, which is tosupervise, direct and control preparation of electoral rollsand conduct elections to municipalities.

X.The result of this position is that it is the duty of the SEC tocountermand illegal orders made by any authority includingthe State Government which delimit constituencies or allotseats to such constituencies, as is provided in proposition(IV) above. This may be done by the SEC either before orduring the electoral process, bearing in mind its constitutionalduty as delineated in the said proposition.

64. Applying the law to the facts of the present case, the firstimportant thing to be noted is that the constitutional bar contained inArticle 243ZG(a) does not apply to the facts of this case. As has correctlybeen pointed out by Shri Laud, the judgment in Anugrah Narain Singh

Av. State of U.P. (supra) would apply as the Goa Municipalities Act doesnot contain any provision akin to Section 10(2) or 10(4) of the DelimitationCommission Act, 1962 that was highlighted in Meghraj’s case (supra),providing that orders of the Delimitation Commission have the force oflaw. This being the case, the first and foremost roadblock that has beenput forward by the learned Solicitor General has been cleared. No faultBcan be found with the Division Bench of the High Court in ignoring anyconstitutional bar in arriving at the conclusion that the 04.02.2021 orderis illegal and ultra vires the provisions of Article 243T of the Constitutionof India read with Sections 9 and 10 of the Goa Municipalities Act. Onmerits, it is important to note that Shri Tushar Mehta, learned SolicitorCGeneral, did not advance any argument that the reservation of seats forwomen and OBCs was in accord with the provisions of the Constitutionand the Goa Municipalities Act. Indeed, even otherwise, we do not findfault with the Division Bench judgment in its conclusion that fractionhas to be worked upwards whatever that fraction be, given the mandatorylanguage of Article 243T of the Constitution which provides for reservationDfor women which shall not be less thanone-third. Also, the findings ofthe High Court on OBC reservation not complying with the mandate ofSection 9(2)(bb) in that in several councils it was below 27% cannot befaulted. The same goes for observations made on the 1 ST seat inSanguem and non-application of the principle of rotation.E65. However, there can be no doubt that Shri Tushar Mehta isright in stating that assurances given by the Advocate General that theState Government would not raise the bar of Article 243ZG(b), but wouldinstead argue that since the election programme was “imminent” andthat therefore, the High Court ought not intervene, cannot alter the positionFin law. There can be no doubt that no concession by counsel can operateagainst constitutional bar.

66. However, on the peculiar facts of these cases, this Court isconstrained not to interfere with the impugned judgment under Article136 of the Constitution of India. This is because of the following specialfeatures of the facts of these cases:G

(i)First and foremost, it is important to note that the StateElection Commissioner is none other than the Law Secretaryto the Government of Goa. The whole process of theseelections is, therefore, faulted at the start so to speak as theSEC is not, in the facts of these cases, an independent bodyHas is mandated by Article 243K.

(ii)It is important to note that the SEC had itself postponed themunicipal elections twice due to the COVID-19 pandemicraging throughout the State. On the second occasion, bythe notification dated 14.01.2021, the SEC had itselfpostponed these elections till April 2021 or the election datewhich may be determined by the State Election Commission.Obviously, the expression “or the election date which maybe determined by the Commission” would indicate datebeyond April, 2021, given the situation in which the State ofGoa finds itself due to the COVID-19 pandemic. It isimportant to note that the High Court in its directioncontained in paragraph 81(e) directs the SEC to act inaccordance with this notification so that elections are heldby 15.04.2021.(iii)In Dnyaneshwar Narso Naik’s case (supra) and SujayS. Lotlikar’s case (supra), solemn assurances were madeby the Advocate General that orders of reservation in wardsof Municipal Councils will be made at least three weeksbefore the election programme is announced. The StateGovernment instead of acting upon these statements, insertedan amendment by adding proviso to Section 10 of theGoa Municipalities Act in which lesser period wasmentioned i.e., period of at least one week.

(iv)The Law Secretary’s letter dated 05.02.2021, calling uponthe Director, Urban Development, to issue reservationorder under Section 10 of the Goa Municipalities Act wasto do so “at an early date”. The Director, by an order passedone day before this communication i.e., on 04.02.2021, withlightning speed provided for reservation in all 11 MunicipalCouncils of women/SCs/STs and OBCs prompting the HighCourt to observe that due application of mind could not havebeen bestowed before issuing such an order.

(v)All the writ petitions in the present cases were filed between9[th] and 12[th] February, 2021 immediately challenging theDirector’s order dated 04.02.2021. None of these writpetitions contained prayer that would hold up any electionprogramme. The only prayer was to strike down theaforesaid order so that the Director in issuing fresh orderwould have to truly and faithfully carry out the constitutional

848SUPREME COURT REPORTS

Amandate of Article 243T of the Constitution of India andthe statutory mandate contained in Section 9 of the GoaMunicipalities Act.

(vi)When the High Court issued notice on 15.02.2021 for finalhearing on 22.02.2021, the SEC did not inform the HighBCourt that vide note of 05.02.2021 (disclosed for the firsttime by an affidavit filed in this Court on 08.03.2021),elections were proposed to be held on 20.03.2021.

(vii)In clear attempt to overreach the High Court, the StateElection Commissioner, who is none other than the LawSecretary of the State of Goa, issues an election notificationCat 9:00 a.m. on 22.02.2021, even before the Governmentoffices open at 9:30 a.m. in order to forestall the hearing ofthe writ petitions filed before the High Court, whichcommences hearing the writ petitions at 9.00 a.m.[1]

(viii) After the judgment was pronounced by the Division BenchDof the High Court on 01.03.2021 and no stay granted, thiscourt, “issued notice” on 04.03.2021 and stayed theimpugned judgment, the effect of which was to revive theelection programme that was notified on 22.02.2021. Despitethis, the State Election Commission, on this very day i.e.,E04.03.2021, amended the aforesaid notification by extendingthe time period for filing of nomination for 5 MunicipalCouncils from 04.03.2021 till 06.03.2021 between 10:00 hrsto 13:00 hrs. and therefore, rescheduled the election.1 It is well settled that actions of the State with oblique or indirect object will beFattributed to “malice in law”. This Court in Kalabharati Advertising v. HemantVimalnath Narichania & Ors (2010) 9 SCC 437 has summarised this as follows:“25. The State is under obligation to act fairly without ill will or malice— in fact or inlaw. “Legal malice” or “malice in law” means something done without lawful excuse. Itis an act done wrongfully and wilfully without reasonable or probable cause, and notnecessarily an act done from ill feeling and spite. It is deliberate act in disregard to therights of others. Where malice is attributed to the State, it can never be case ofGpersonal ill will or spite on the part of the State. It is an act which is taken with anoblique or indirect object. It means exercise of statutory power for “purposes foreignto those for which it is in law intended”. It means conscious violation of the law to theprejudice of another, depraved inclination on the part of the authority to disregard therights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpurv. Shivakant Shukla [(1976) 2 SCC 521], S.R. Venkataraman v. Union of India [(1979)2 SCC 491], State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739], BPL Ltd. v. S.P.HGururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568])”

67. Given the aforesaid, the order of the High Court contained inparagraph 81 of the impugned judgment will be observed with twochanges. In paragraph 81(c), it is clarified that the period of 10 days inwhich the Director, Urban Development is to issue fresh order will be10 days from the date of this judgment. Also, instead of “15[th] April”occurring in paragraph 81(e), the words “30[th] April” be substituted. Allthe other directions will remain undisturbed.

68. The most disturbing feature of these cases is the subversionof the constitutional mandate contained in Article 243K of the Constitutionof India. The State Election Commissioner has to be person who isindependent of the State Government as he is an important constitutionalfunctionary who is to oversee the entire election process in the statequa panchayats and municipalities. The importance given to theindependence of State Election Commissioner is explicit from theprovision for removal from his office made in the proviso to clause (2) ofArticle 243K. Insofar as the manner and the ground for his removalfrom the office is concerned, he has been equated with Judge of aHigh Court. Giving an additional charge of such an important andindependent constitutional office to an officer who is directly under thecontrol of the State Government is, in our view, mockery of theconstitutional mandate. We therefore declare that the additional chargegiven to Law Secretary to the government of the state flouts theconstitutional mandate of Article 243K. The State Government is directedto remedy this position by appointing an independent person to be theState Election Commissioner at the earliest. Such person cannot be aperson who holds any office or post in the Central or any StateGovernment. It is also made clear that henceforth, all State ElectionCommissioners appointed under Article 243K in the length and breadthof India have to be independent persons who cannot be persons who areoccupying post or office under the Central or any State Government.If there are any such persons holding the post of State ElectionCommissioner in any other state, such persons must be asked forthwithto step down from such office and the State Government concerned bebound to fulfil the constitutional mandate of Article 243K by appointingonlyindependent persons to this high constitutional office. The directionscontained in this paragraph are issued under Article 142 of the Constitutionof India so as to ensure that the constitutional mandate of an independentState Election Commission which is to conduct elections under Part IXand IXA of the Constitution be strictly followed in the future.

850SUPREME COURT REPORTS

A69. The appeals are disposed of accordingly.

Writ Petition (Civil) No. 309/2021

1. This writ petition has been filed under Article 32 of theConstitution of India by resident of Margao, Goa, challenging thereservation order dated 04.02.2021 issued by the Director of MunicipalBAdministration, Goa, and the notification dated 04.03.2021 which wasissued by the Goa SEC altering the original schedule of elections.

2. Given our judgment in the aforesaid appeals, in view of the factthat the reservation order dated 04.02.2021 has been set aside and thata fresh election schedule will have to be notified, the writ petition isCallowed and the notification dated 04.03.2021 is also struck down.

Nidhi Jain

Appeals disposed and petition allowed.