Crux: The State Of Goa v. Fouziya Imtiaz Shaikh (12th March, 2021)- It was held by the Supreme Court that, it reserves order on Goa plea against High Court’s order quashing polls in five municipalities.
DATE OF JUDGEMENT: 12th March, 2021
JUDGES: Hon’ble Justice Rohinton Fali Nariman, Hon’ble Justice B.R. Gavai & Hon’ble Justice Hrishikesh Roy
PARTIES
- The State Of Goa (Plaintiff)
- Fouziya Imtiaz Shaikh (Respondent)
SUBJECT: The appellant is aggrieved by an interim order passed by the High Court.
AN OVERVIEW
(i) In this present case, Mr. Joshi, learned counsel appearing for the SEC admitted that there has been constitutional infraction on the part of the Director, in failing to reserve not less than one- third of the total number of seats in Mormugao and Mapusa Municipal Councils, in favour of women. He submits that the issue of reservation is within the purview of the Directors and therefore, notwithstanding the constitutional or statutory infraction, the SEC is helpless and has no choice but to proceed with the elections based on the impugned order dated 4th February 2021 and since it is bestowed with a duty to conduct timely elections.
(ii) It was held by the High Court that, keeping in mind the aforesaid philosophy in introducing reservation for women by the Constitution and subsequently in the State Legislation, we are of the firm opinion that the course adopted by the respondent no.2 violate the mandate of law.
(iii) It was further stated by the Court that they do not appreciate the helplessness expressed by the State Election Commission, which is supposed to be an authority independent of the Government. If the illegality has been noticed by the State Election Commission, it is expected to act with promptitude and issue appropriate directions to the Director to rectify the said action by ensuring that it follows the mandate of the constitution rather than to rush and issue the election schedule.
(iv) Furthermore, the Court stated that it, appreciated the submission advanced by the learned Advocate General that mere absence of policy would not lead to arbitrariness, albeit, we have before us instances as reflected in the Noting from where we have discerned that absence of policy has resulted into non discernable and non-justifiable rotation of seats in different wards of respective Municipal Councils. The prescribed reservation of women as per the mandate is one such instance. On similar grounds, is the case in respect of the OBC reservations, though none of the petitioners before us raised the said ground before us, however, since we have perused the Noting, we are enlisting it as one of the aspect demonstrating non application of mind and attitude towards flouting the mandate of the State legislation.
(v) The court held that, understanding or theory of complying with the constitutional or statutory mandate in three installments spread over 15 years is some unique device adopted by the Director in a futile attempt to justify the gross constitutional and statutory infraction. Such a justification finds no basis either in the Constitution or the said Act. Such a justification is neither legal nor reasonable. Based on such a justification, there is no question of sustaining the order dated 4th February 2020.
IMPORTANT PROVISIONS
Constitution of India
- Article 226 - Power of High Courts to issue certain writs. – (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them or the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32
ISSUES
The Supreme Court on the date of 04/03/2021 had issued notices to the state election commission and Fouziya Imtiaz Shaikh, a petitioner in the High Court who had filed a caveat to prevent any ex-party order.
ANALYSIS OF THE JUDGEMENT
- Here, the Supreme Court on Tuesday reserved its order on a plea filed by the State of Goa challenging the order dated March 1, 2021, passed by the Bombay High Court at Goa by which it had set aside and quashed the notification for elections in the five municipalities.
- It was held by a three-judge bench headed by Justices Rohinton Fali Nariman, B. R. Gavai and Hrishikesh Roy has reserved its order on Tuesday on an appeal against the High Court order which had set aside the election notification in the municipalities of Margao, Mapusa, Mormugao, Sanguem and Quepem. Following that the Apex Court has directed parties to file their written submissions by March 12, 2021.
- The Apex Court on 04/03/2021 had issued notices to the state election commission and Fouziya Imtiaz Shaikh, a petitioner in the High Court who had filed a caveat to prevent any ex-party order. It stated that, having heard Mr. Tushar Mehta, learned Solicitor General for the petitioner, Mr. Atmaram NS. Nadkarni, learned Senior Advocate for the Respondent No.1 and Mr. Abhay Anil Anturkar, learned counsel for the Respondent No.2, we stay the impugned direction of the High Court as well as the Election Commission notification which is in pursuance of the High Court judgment
- Furthermore, the Bombay High Court at Goa had allowed the SEC to continue the election process in other municipalities while striking down one in the five municipalities for not reserving the wards for women as required under the law. Thereafter, the Bombay High Court decision stopped by the Apex Court, the SEC can go ahead with the elections in the five municipalities that were kept in abeyance.
- The Bombay High Court had said in its order that, “The impugned order dated 04/02/2021 issued by the Director and exofficio Additional Secretary, Municipal Administrator/ Urban Development, Goa in so far as it concerned the Municipal Council of Sanguem, Mormugao, Mapusa, Margao and Quepem is quashed and set aside.
- The Court had directed the Director and ex-officio Additional Secretary, Municipal Administrator/Urban Development, Goa to issue fresh notification under sub-section 1 of Section 9 r/w. Subsection 1 of Section 10 of the Goa Municipalities Act, 1968 within a period of 10 days from today, thereby ensuring inter alia, reservation for women of not less than on-third of the total number of seats reserved for direct elections to the Municipal Councils.
- The High Court at Goa stated that, Elections are the central institution of democratic representative governance, since in the democratic setup, the authority of the Government derives solely from the concept of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections. Democratically elected nations burgeon on absolutely free and impartial elections and India being a colossal democracy demands such a process.
CONCLUSION
In this case, the learned counsel for the parties have made their submissions on merits of the writ petition, and also on the legality of the order dated 18th January, 2019. Although, the Court is not dilating on the issue at this stage, as the writ petition is pending consideration before the High Court. The Apex Court further held that, the nature of modification which has been made by the High Court vide order impugned dated 4th October, 2019 in the form of an ad-hoc interim arrangement, in the Courts view, is exceeding its jurisdiction, and not within the realm of power of judicial review to be exercised under Article 226 of the Constitution. It is well settled that by an interim order, even the final relief ordinarily should not be granted. Furthermore, the appeal succeeds and is accordingly allowed. The order impugned passed by the High Court dated 4th October, 2019 is hereby quashed and set aside. We make it clear that the Writ Petition No. 8242 of 2019 be decided independently without being influenced by the observations made by us in the present order on its own merits in accordance with law. No costs are awarded by the Court.
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