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2021 DIGILAW 689 (BOM)

Prakash Devu Gaonkar v. State Of Goa

2021-03-25

DIPANKAR DATTA, M.S.SONAK

body2021
JUDGMENT M.S. Sonak, J. - Heard Mr. Nigel da Costa Frias with Ms. A. Barbara, learned counsel for the Petitioner, Mr. D. Pangam, learned Advocate General with Ms. A. Kamat, learned Additional Government Advocate for respondents no.1 and 2, and Mr. S. Karpe with Mr. A. Sawant learned counsel for respondent no.3 - State Election Commission. 2. The challenge in this petition is to the notification dated 15.03.2021 issued by the Director and Ex-Officio Additional Secretary (Municipal Administration/Urban Development) insofar as it concerns the Sanguem Municipal Council (SMC). The impugned notification has been issued by the Director in the exercise of powers conferred upon him under Sections 9 and 10 of the Goa Municipality Act, 1968 (said Act). 3. The petitioner has pleaded that he is a resident of Ward no.10, the SMC area, and belongs to the ST Gawda community. He has pleaded that he intends to contest the ensuing elections from Ward No.10 since, he had contested and won the elections held in the year 2015, from this very ward. 4. The petitioner has pleaded that Ward no.10 was reserved for Women-OBC in the year 2010 and the same was left for the general category in the year 2015. By the impugned notification, however, Ward no.10 has now been reserved for the ST-Women. 5. According to the petitioner, there are 681 voters in Ward no.10 but there is no study or census to determine the concentration of the ST population in the said ward or for that matter in any of the wards. The petitioner has also pleaded that from the documents which he could obtain, the ST population in the SMC area is 5.88%, and therefore, the maximum of one seat could be reserved for the ST category. The petitioner has then pleaded that as per his knowledge Ward no.10 has approximately 130 voters belonging to the ST community and Ward no.5 has approximately 76 voters belonging to the ST community. 6. The petitioner has also pleaded that Ward nos.5 and 9 were not reserved for women in the last two elections. He has also pleaded that Ward no.7 was reserved for the ST category in the year 2015 and therefore, applying the rule of rotation, Ward no.8 should have been reserved for the SC/ST category but the same has now been reserved for women. He has also pleaded that Ward no.7 was reserved for the ST category in the year 2015 and therefore, applying the rule of rotation, Ward no.8 should have been reserved for the SC/ST category but the same has now been reserved for women. In short, the petitioner has alleged that the rotation policy has not been properly followed. 7. Mr. Costa Frias, submitted that Ward no.10 has been reserved for two terms and this amounts to a breach of the rotation policy which has been mandated by Article 243T of the Constitution and Section 10(1) of the said Act. He submits that the impugned notification has failed to have regard to the concentration of population, particularly in Ward no.10 even though, Section 10 of the said Act requires the Director to have regard to this aspect. He refers to the notings made by the Director and submits that the reservations have been done in a haphazard manner and without any proper basis. He submits that this is a fit case to strike down the notification or in any case direct the State Election Commission to act on the petitioner's complaint and refuse to proceed with the elections based on the impugned notification. For all these reasons Mr. Costa Frias submits that the present petition be allowed. 8. Mr. D. Pangam, learned Advocate General for the State submits that there is no illegality in the issuance of the impugned notification. He submits that the rule of rotation has been followed and even the concentration of population has been taken into account. In the particular context of Ward no.10 of the SMC, Mr. Pangam submits that this Court whilst disposing of a batch of writ petitions i.e. Writ Petition No.85 of 2021, and others had specifically held that the ST population in Ward no.10 was 206 and therefore, there was no justification for reserving Ward no.1 which had ST population of only one voter. He submits that the decision of this Court has already been upheld by the Hon'ble Supreme Court and therefore, there can be no arbitrariness involved in reserving Ward no.10 for the ST-Women category. He, therefore, submits that this petition may be dismissed. 9. We have considered the rival contentions in the context of the material placed before us as also the provisions of the Constitution and the said Act. 10. He, therefore, submits that this petition may be dismissed. 9. We have considered the rival contentions in the context of the material placed before us as also the provisions of the Constitution and the said Act. 10. In this matter, though the petitioner has made allegations about the breakdown of the rotation rule or that the aspect of concentration of population has been ignored, the petitioner, has failed to make good any of such allegations, particularly in the context of Ward no.10 of the SMC from where the petitioner had intended to contest the election. The allegations, apart from being vague, are not supported by any material, and therefore, based on such allegations, no case can be said to have been made out to interfere with the impugned notification. 11. Since, the petitioner alleges that the concentration of population of the STs in Ward no.10 has not been taken into consideration by the Director before issuing the impugned notification, reference is necessary to be made to some observations made by us in our Judgment and Order dated 01.03.2021 disposing of a batch of petitions: 26. ......................................Another instance of arbitrariness or non application of mind is the reservation in ward no. 1 in Sanguem Municipal Council; the ward is reserved for Scheduled Tribe category whereas the percentage of population in the Ward of ST is 0.23% and a specific averment is made in the petition, which is not denied is there is only one voter belonging to the said category. If the respondent no. 2 would have paid attention to the wording applied in Section 10 "having regard to the concentration of the population" and given the said term significance as population of SC, ST and OBC, the said error was avoidable. By ignoring the concentration of the population, the situation that has arisen wherein ward no. 10 which has ST population of 206 as against total population of 681, by following cycle of rotation, since in the year 2010, ward no. 4 which had maximum ST population and it was reserved in the next election, according to us, the next highest population ward should have been reserved in the year 2013. The challenge to the reservation of the said provided in the year 2021 as arbitrary, justify the said accusation. 4 which had maximum ST population and it was reserved in the next election, according to us, the next highest population ward should have been reserved in the year 2013. The challenge to the reservation of the said provided in the year 2021 as arbitrary, justify the said accusation. The population criteria which would have provided a guiding factor for rotation of the reserved seats would have lead to some discernable policy has been completely brushed aside by urging before us that the population criteria is frivolous and we are also satisfied that the technical objection of the learned Advocate General that there are no pleadings to that effect or that there is no challenge to the reservation provided in ward no. 10 by the petitioner and therefore we should not examine as to what reservations was provided or whether it is right or wrong. The absence of any known guidelines which would have afforded certainty both for the respondent no. 2 as well as to the voters, candidates contesting and all those who are interested in the process, and would have avoided such a hotchpotch. The learned Advocate General submit that even if there are certain minor irregularities in the process, they are not detrimental to the interest of the petitioners or do not affect the election to the municipal council." 68. Now the Petitioner in Writ Petition No.85 of 2021 has pleaded that the population of ST in ward No.4 of Sanguem Municipal Council is around 230 to 235 out of the total number of 837 voters. So also the population of ST in ward No.10 is 206 out of a total population of 681 or thereabouts. These averments in paragraphs 18 and 19 have not been denied by filing an affidavit. Even the learned Advocate General in the course of his arguments did not dispute this figure. 69. Significantly, there are pleadings in Writ Petition No.85 of 2021 that the population of ST in ward No.1 of Sanguem Municipal Council is only 1 (one). 70. Despite the aforesaid uncontested population figures, the Director, in this case, has chosen to reserve ward No.1 for ST thereby totally ignoring the mandate of Section 10(1) of the said Act that the Director shall have regard to the concentration of population of ST in any particular ward. 70. Despite the aforesaid uncontested population figures, the Director, in this case, has chosen to reserve ward No.1 for ST thereby totally ignoring the mandate of Section 10(1) of the said Act that the Director shall have regard to the concentration of population of ST in any particular ward. There is no explanation as to why the ward No.1, which has only 1 (one) ST member corresponding to 0.23% of the population has been reserved in favour of ST and why the ward No.10, which has an ST population of almost 30% has been left unreserved even though, in the election held in 2015, the ward No.10 was an unreserved ward. 71. The learned Advocate General, however, contended that the norms of concentration of population are not to be found in the Constitution of India and therefore, the Director was not bound to apply such norms whilst reserving seats. The learned Advocate General also submitted that the provisions of Section 10 are Directory when it comes to having regard to the concentration of the population. He submitted that at times absurd results would ensue if the norm of concentration of population is required to be adhered to. He submits that such norms are inconsistent with the norms of rotation of reserved seats. 72. According to us, 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. The Director, by ignoring such norms has acted arbitrarily and unreasonably. An absurd result has ensued on account of the Director ignoring these statutorily prescribed norms. The constituency which has more than 30% ST population has left unreserved and constituency which has only 1 (one) ST member corresponding to 0.23% ST population is reserved for ST. The impugned order dated 4th February 2021 to the extent it reserves ward No.1 for ST, is vitiated by arbitrariness, unreasonableness, and non application of mind. 73. Significantly, the Director, has placed on record his Noting dated 4th February 2021, to explain his decision-making process. The impugned order dated 4th February 2021 to the extent it reserves ward No.1 for ST, is vitiated by arbitrariness, unreasonableness, and non application of mind. 73. Significantly, the Director, has placed on record his Noting dated 4th February 2021, to explain his decision-making process. Now if this Note is perused then the Director had, in fact, proposed that ward No.1 be retained as a general ward or unreserved ward. However, while issuing the impugned order dated 4 th February 2021, ward No.1 has been indicated as a ward reserved for ST. There is no explanation whatsoever about such a switch by filing an affidavit or otherwise. The learned Advocate General faintly suggested that there is an error in the Noting. According to us, the error is possibly in not reserving ward No.10 which has ST population of almost 30% has reserved for ST and there is no error in proposing to retain the ward No.1 as a general ward because it has a population of only 1(one) ST member corresponding to 0.23% of the entire population of the said ward. The impugned order dated 4th February 2021 deserves to be set aside on this ground as well." 12. Now the aforesaid observations directly concern the SMC in general and Ward no.10 of the SMC area in particular. The Civil Appeals against the Judgment and Order dated 01.03.2021, in which the aforesaid observations are to be found, have been dismissed by the Hon'ble Supreme Court. 13. The Director, in deference to the above observations, has quite correctly reserved Ward no.10 in favor of the ST-Women category. The petitioner has not made good his pleading that the ST population in Ward no.10 is 130 out of the total of 681. The statistics placed on record by the Director which were accepted by this Court in the earlier batch of petitions indicate that the ST population is 206 out of a total of 681 voters. In any case, even a population of 130 from out of 681 amounts to a considerable population particularly since the petitioner has himself pleaded that the ST population in Ward no.5 is 76. In these circumstances, it cannot be said that the Director has ignored the aspect of concentration of population whilst making observations. 14. Mr. Costa Frias pointed out no infirmity in the reservation of Ward no.10 for women. In these circumstances, it cannot be said that the Director has ignored the aspect of concentration of population whilst making observations. 14. Mr. Costa Frias pointed out no infirmity in the reservation of Ward no.10 for women. In terms of the constitutional mandate as also the provisions of the said Act, the Director had to reserve not less than 1/3rd of the seats in favor of the women. Even the rotation policy has been followed by the Director. Accordingly, no case of manifest arbitrariness has been made out by the petitioner. 15. In the facts of the present case, there is no point in requiring the State Election Commissioner to look into the representation made by the petitioner in the context of the reservations to Ward no.10 of the SMC area. Based on the material on record, the petitioner has failed to establish that there was any breach of the rotation rule or that the aspect of concentration of population was ignored by the Director. The Director has also gone by the observations made by this Court, which were ultimately upheld by the Hon'ble Supreme Court. 16. For all the aforesaid reasons, we are satisfied that no case has been made out to interfere with the impugned notification on the grounds urged in this petition. This petition is therefore liable to be dismissed and is hereby dismissed. 17. In the facts of the present case, however, there shall be no order as to costs.