PANAJI
The Bombay High Court at Goa has struck down and set aside the notification of reservations of five of the 11 municipalities that are scheduled to go to polls later this month asking the Director of Municipal Administration to instead issue a fresh notification keeping in mind High Court’s observations.
Pronouncing a joint judgement on the nine petitions that were filed before the High Court challenging the notified reservations “the impugned order dated 04/02/2021 in so far as it concerned the Municipal Council of Sanguem, Mormugao, Mapusa, Margao and Quepem is quashed and set aside,” the High Court division bench of Justices M S Sonak and Bharati Dangre, said.
“We direct the Director and ex-officio Additional Secretary, Municipal Administrator/ Urban Development, Goa to issue fresh Notification within a period of 10 days from today, thereby ensuring inter alia, reservation for women of not less than one-third of the total number of seats reserved for direct elections to the Municipal Councils,” the High Court said.
“While exercising the power afresh and rectifying the gross illegalities pointed out in our judgment and order, the Director shall give due weightage to our observations made therein. The State Election Commission of Goa is directed to expeditiously notify the election programme, on the order for reservation of seats in the Municipal Councils being issued by the Director (of Municipal Administration) and the State Election Commission shall align the schedule of election in a manner, to ensure its completion on or before 15th April,2021,” the High Court said.
The petitioners approached the High Court alleging that the number of seats reserved for women was less than the mandated 33% and that the reservations of other protected communities was haphazard and arbitrary.
Advocate S S Kantak who was representing petitioners from Mapusa and Mormugao told the court that in Mapusa out of 20 seats, a minimum of seven seats ought to have been reserved for women but only 6 seats are reserved whereas in case of Mormugao where the Municipal Council comprise of 25 seats, a minimum of nine seats ought to have been reserved for women, instead only 8 seats are reserved.
Adv D Lawande representing petitioners pertaining to Sanguem Municipal Council pointed out that the reservation for Scheduled Tribes in Ward No.1 and to support his stand of high handedness, he asserts that the population of Scheduled Tribes in Ward no.1 is miniscule, being 0.23% with only one scheduled tribe voter in the said Ward, in contrast to Ward No.4, where the ST population is 235 out of 837 and in Ward no.10, it is 206 out of its total population of 681.
“In spite of its high concentration of population of ST category Ward No.10 is not reserved for the said category either in the year 2010, 2015 or in the year 2021,” he told the court.
Adv C A Ferreira who represented petitioners from Quepem Municipal Council, assertively submit that in absence of any policy for rotating the reserved seats, and leaving it to the whims and fancies cannot withstand the scrutiny of law as it fails to adhere to the mandate of law, both enshrined in the Constitution and the statute governing the Municipal elections.
However, in response the Advocate General told the court that the reservations did not amount to any right of the petitioner being infringed and since the right to contest the election neither being a fundamental right or common law right, but merely a statutory right, it must confine its limits within the statute.
He also said that with respect to the reservations for women the figure was ‘rounded off’ and as such was within legal parameters.
With regard to the argument that the process was already underway, the High Court ruled that “if the Municipal Council is to be constituted based on the impugned order dated 4th February 2021 then, such a council would not be a council as contemplated by various provisions in Part IXA of the Constitution. Therefore, to permit the Constitution of a council contrary to the provisions of Part IXA of the Constitution or Sections 9 and 10 of the said Act would amount to permitting the Respondents to contravene the provisions of the Constitution as well as the said Act.”
With regard to rotation, the High Court said that “Even though there is no reference to the concentration of population norm for reservation of seats in particular wards provided in the Constitution, such requirement has been provided in Section 10(1) of the said Act of the Legislature of the State. The Director, who is an authority under the said Act, cannot refuse to apply such norms, which is statutorily prescribed.”
