1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.538 OF 2007. Along with MISCE. CIVIL APPLICATION NO.862/2007 IN W.P. NO. 538/2007. 1. Shri Naresh Krishna Gaunekar, s/o Krishna Gaunekar, major, married, residing at H.No.W10/30/20, Ponda Town, Ponda Taluka, Goa. 2. Shri Durgadas Shamba Borkar, s/o Shamba Borkar, major,married, residing at H. No. 191/18, Near I. D. Hospital, Tisk,Pona Town, Ponda Taluka, Goa. 3. Shri Dilip Baburao Naik, s/o Baburao Naik, major, married, residing at H. No.159/A-6,Ponda Town, Ponda Taluka,Goa 4. Shri Sharad Vaman Parsekar, son of Vaman Parsekar, major,married, businessman, residing in HouseNo.211/3/2, Opp. P.W.D. Complex,Tisk, Ponda Town,Ponda Taluka, Goa. .. Petitioners Versus 1. State of Goa, through its Chief Secretary, having its office at Secretariat, Porvorim, Bardez- Goa. 2 2. The Director of Municipal Administrative, Government of Goa, having his office in the Collectorate complex,Panaji- Goa. 3. The Commissioner, the Goa, State Election Commission, 3rd Floor, Junta House, Panaji- Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. Ryan Menezes, Advocate for the petitioners. Mr. S.S.Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt Advocate for respondent NoS. 1 & 2. Mr.V. P.Thali, Advocate for respondent no.3. Mr. A.F. Diniz Advocate for the Goa State Commission For Backward Classes. WITH MISC. CIVIL APPLICATION NO.870/2007 IN W.P. NO. 538/2007. 1. Shri Naresh Krishna Gaunekar & 3 Ors .. Petitioners Versus 1. State of Goa & 2 Others, .. Respondents And Shri. Lavoo S.Mamladar, of major age, Indian National, resident of Durgabhat, Ponda-Goa. .. Applicant/ Intervenor. 3 Mr. M. S. Sonak, Advocate for the applicant/intervenor. Mr. S. D. Lotlikar,Senior Advocate with Mr. Ryan Menezes, Advocate for the respondents/ Original petitioners. Mr. S.S.Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt Advocate for the Original respondents No. 1 & 2. Mr.V. P. Thali, Advocate for the Original respondent No.3. WITH MISCE. CIVIL APPLICATION NO.874/2007 IN W.P. NO. 538/2007. 1. Shri Naresh Krishna Gaunekar & 3 Ors .. Petitioners Versus 1. State of Goa & 2 Others, .. Respondents And Mrs. Radhika Shrikant Nayak, wife of Shrikant Nayak, 48 years old, ex-Chairperson of Ponda Municipal Council, India national, residentof H.No.S-3, Ramnathkar Apartments, Old Bazar, Ponda- Goa. .. Applicant/ Intervenor. Mr. S. G. Dessai, Senior Advocate with Mr. P. Talaulikar,Advocate for the applicant/intervenor. Mr. S. D. Lotlikar,Senior Advocate with Mr. Ryan Menezes, Advocate for the respondents/ original petitioners. Mr. S.S.Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt 4 Advocate for the original respondent nos. 1 & 2. Mr.V. P. Thali, Advocate for the original respondent no.3. WITH WRIT PETITION NO.426/2006 1. Shri Bhikaji Babuso Naik Satardekar, 68 years, businessman, residing at Harvalem,Sanquelim, Goa. 2. Shri Vithal Raghunath Kamat, 45years, Agriculturist, residing at Virdi, Sanquelim, Goa 3. Shri Damodar Krishna Ghadi, 35 years, in service, residing at Virdi, Sanquelim, Goa. 4. Shri Ramchandra Pundalik Navelkar, 51years, in service, residing at Prata Nagar, Harvalem, Sanquelim, Goa 5. Shri Praveen Dwarkanath Blaggan, 45years, Businessman, residing at Gokulwadi, Sanquelim, Goa. .. Petitioners. Versus 1. The State of Goa, through the Panchayat Secretary, with his office at Secretariat Complex, Porvorim, Bardez-Goa. 5 2. Sanquelim Municipal Council, Through its administrator, With his office at Sanquelim Municipal Council, Sanquelim, Goa. .. Respondents. Mr. V. P. Thali, Advocate for the petitioners. Mr. S. S. Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt Advocate for the respondent no.1. WITH MISCE. CIVIL APPLICATION NO.858/2007 IN W.P. NO. 426/2006. Bhikaji Babuso Naik Satardekar, Harvalem, Sanquelim, Goa. .. Petitioner. Versus The State of Goa through the Panchayat Secretary& Anr. .. Respondents. State of Goa through Director of Municipal Administrator .. Applicant. Mr.S.S.Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt Advocate for the applicant. Mr. V. P. Thali, Advocate for the respondents/original petitioners . WITH 6 WRIT PETITION NO. 554/2007. Shri Manohar C.Adaipaikar, R/o. Khadapaband, Ponda Goa .. Petitioner. Versus 1. State of Goa, Through its Chief Secretary, having office at Secretariat, Porvorim Goa. 2. Director of Municipal Administration, having office at Collectorate building, Panaji Goa. 3. State Election Commissioner, through its Secretary having office at Panaji Goa. 4. Administrator, Ponda Municipal Council,having office at Ponda Goa. 5. Ponda Municipal Council, through its Chief Officer, having office at Ponda Goa. .. Respondents. Mr. N. K. Sawaikar, Advocate for the petitioner. Mr. S.S.Kantak, Advocate General with Mrs. L. Dharwadkar, Addl. Govt Advocate for the respondent nos. 1 & 2. Mr.V. P. Thali, Advocate for the respondent no.3. Mr. S. D. Padiyar, Advocate for the respondent no.5. Coram :- D. B. BHOSALE & N. A. BRITTO, JJ. Date : - 18th December, 2007. 7 ORAL JUDGMENT: (PER D. B. BHOSALE, J.) 1. Rule in Writ Petition Nos.538 of 2007 and 554 of 2007. By consent, Rule made returnable forthwith. Learned Counsel waive notice on behalf of the respondents. By consent, both these petitions along with Writ Petition No.426 of 2006 with Misc. Civil Application No.858 of 2007 therein are taken up for final hearing forthwith and heard finally. . 2. All the three writ petitions and Misc.Civil Application 858 of 2007 in Writ Petition No.426 of 2006 raise common questions and hence they are being disposed of by common judgment. 3. The petitioners in Writ Petition No.538 of 2007 have filed this petition under Articles 226 and 227 of the Constitution of India praying for a writ of Mandamus or any other appropriate writ or direction to the respondents to reserve seats for the Other Back Ward Communities (for short, “OBCs”) in all the Municipal Councils in the State of Goa including the Municipalities of Ponda and Sanquelim before conducting municipal elections for them. The petitioners claim that they belong to Nabhik and Bhandari Naik communities which are included by the State of Goa in its list of OBCs. 8 4. Writ Petition No.554 of 2007 is filed by Manohar Adaipaikar, who was elected councilor of the Ponda Municipal Council, (for short, “PMC”) in the last elections of the council held on 21.8.2001. He also belongs to OBC category. In this petition, he is seeking direction to the respondents to hold elections to PMC within the specified time schedule and has opposed postponement of the elections on any ground whatsoever.. He has also sought declaration that the order dated 5.9.2006 issued by respondent no.1 appointing N.V.Narvekar as an Administrator of PMC is illegal and ultra vires the provisions of the Constitution of India. However, in the course of arguments, this prayer was not pressed by the learned counsel for the petitioners. 5. In Misc.Civil Application No.858 of 2007 in Writ Petition No.426 of 2006 the State has prayed for extension of time to hold elections to Sanquelim Municipal Council (for short, “SMC”) and PMC for a period of six months. It appears, in Writ Petition No.426 of 2006, filed by the five petitioners, the main challenge is to the Ordinance no.2 of 2006, by which the existing village panchayats of Sanquelim-Harvale-Virdi has been converted into municipal area with effect from 28.4.2006. The petitioners have made several other prayers in that writ petition including the interim prayer seeking stay of the operation of the impugned order dated 28.4.2006 appointing the Administrator for the municipality of Sanquelim and direction 9 to hold elections within a reasonable time to be fixed by this court This court, on 16.4.2007 admitted the writ petition and on 9.7.2007 recorded a statement made by learned Advocate General to the effect that the process to hold elections to SMC will be completed by December 2007 in consultation with the State Election Commissioner. While accepting the statement made by the Advocate General, this court observed that the process of elections would be completed expeditiously. 6. In Misc. Civil Application No.858 of 2007 in Writ Petition No.426 of 2006, the Director of Municipal Administrator has, however, expressed difficulties faced by them in holding the elections by December 2007. It is stated in the application that apart from SMC, the elections were also required to be held for PMC as its term had expired and the Administrator had been appointed. It is further stated that steps were initiated to delimit 13 wards for PMC and 11 wards for SMC and that exercise was completed and the notification of delimitation of wards with reservation of seats for women was issued on 20.6.2007. A reference to the amendment of the Goa Municipalities Act,1968 (for short, “the Municipalities Act”) is also made, which provides that in every municipal council seats shall be reserved for SC, ST and OBC. It is further stated that the Government has sanctioned an amount of Rs.27 lacs, to the Goa State Commission for Backward Classes for conducting survey, as 10 demanded by the said Commission. The application further states that the Commission has informed that the strategy for the survey of SC., ST and OBC has been finalized and the training has also been imparted to CDPOs and the formats have been settled by a multi sectoral committee. This process, according to the applicants, is likely to take some more time though the exercise is now initiated. It is against this backdrop, they have prayed for extension of time granted by this court vide order dated 9.7.2007 to hold elections to SMC and PMC for a period of six months. 7. Misc.Civil Application No.862 of 2007 is filed by the petitioners in Writ Petition No.538 of 2007 seeking urgent hearing of the writ petition on interim relief and hearing of Misc Civil Application Nos 858 of 2007 in 426 of 2006 filed by the Director of Municipal Administration for extension of time urgently . 8. Misc. Civil Application nos 870 of 2007 and 874 of 2007 are filed by the two intervenors intending to oppose the prayers made in writ petition no.538 of 2007. We have allowed those applications and heard learned counsel for the intervenors on merits. 9. Before we make reference to the submission advanced by learned counsel for the parties and deal with the questions raised in these 11 petitions/applications, it would be advantageous to state undisputed facts which may be relevant for deciding the questions raised. Though in writ petition no.538 of 2007 the petitioners have made general prayer seeking direction to the respondents to reserve seats for OBCs in all the municipal councils in the State of Goa,for the present we are concerned with the two municipal councils, namely, the PMC and SMC. The relevant facts are as under:- A-(i) There are 13 municipal councils in the State of Goa and the one Municipal Corporation of the City of Panaji. (ii) The term of PMC expired on 6.9.2006 and in terms of the mandate of Article 243-U of the Constitution of India the elections were due on or before the date of expiry. (iii) The State Election Commissioner had proposed to hold elections on 3.9.2006. As per the proposed election programme, nomination papers were to be accepted between 7.8.2006 and 14.8.2006. (iv) The number of wards of PMC was increased from 11 to 13 in view of the Goa Municipalities (Amendment) Act, 2006 assented by the Governor on 4.8.2006. The Election Commissioner, in view of the increase in the number of wards and in view of the election process of bye election to fill up Mormugaon Lok-Sabha seat, which was to commence from 5.10.2007 and to 12 continue upto 5.11.2007, postponed the elections of PMC.. (v) SMC came into being pursuant to an ordinance issued by the State Government on 28.4.2006. Prior to this, it was a Panchayat area. The term of the Panchayat had expired on 5.4.2006. (vi) The Goa Municipalities Act, 2006 (Goa Act 14 of 2006) was subsequently enacted by the Legislature thereby repealing the Goa Municipalities (Amendment) Ordinance, 2006. The section of the ordinance is declared to be deemed to have come into force on 28.4.2006. (vii) Immediately upon constitution of SMC, an Administrator was appointed vide order dated 28.4.2006 issued under section 298(1)(d) of the Municipalities Act,1968. (viii) In Writ Petition No.426 of 2006, 28.4.2006 , this Court, as aforestated, recorded the statement of the Advocate General stating that the elections process to SMC will be completed by December, 2007 (ix) SMC have 11 wards. (x) The elections of the village Panchayat of Sanquelim-Harvale-Virdi were due on 30.4.2006. In view of the ordinance dated 28.4.2007 the elections were postponed. B-(i) The State of Goa, by the two Notifications dated 3.3.1997 and 30.6.2000, notified inclusion of certain communities in the State List of OBCs (ii) The State of Goa amended section 9 of the Goa Municipalities 13 Act,1968 and under clause (2) of sub-section (1) of Section 9 provided for reservation for OBCs along with Scheduled Castes and scheduled Tribes, in every municipal council. The amendment came into force on 25.4.2007. (iii) In PMC areas, there are about 15,032 voters out of which about 41% belong to OBCs and in SMC area, out of total 9254 voters, about 33% belong to OBCs. (iv) For the first time vide Notification dated 22.4.2003, three communities, namely Gawda, kunbi and Velip were notified as Scheduled Tribes in the State of Goa. Prior to this notification all the three communities were recognised as OBCs. (v) The Director of Social Welfare, the Government of Goa has published a Survey Report on Scheduled Tribes of Goa (Gawda, kunbi, Velip) in February 2004 which shows in PMC area there are about 50 Tribe Households, while in SMC there are nil. This is published by the Government for official use. (vi) The State Election Commission had notified in accordance with Rule 4 of Goa Municipalities (Election) Rules, 1969, election programme of PMC and SMC which was to commence from 19.11.2007, with the date of poll fixed on 16.12.2007. The said elections were slatted to be held, without providing reservations for OBCs. The said election programme has been aborted, in view of the interim order passed by this Court on 16.11.07 in Misc 14 Civil .Application No.862 OF 2007. (vii) The figures of the last preceding census, namely the one held in 2001 are available and those census figures do not show any population of OBCs in the State of Goa. (viii) If the time as prayed is not extended and the elections are directed to be held forthwith, they will be held without there being any reservation for OBCs. 10. Against the backdrop of the aforesaid factual matrix, the arguments were advanced by learned counsel for the parties in all these petitions/applications, which were based on Article 243T and 243U of the Constitution and in view thereof it would be advantageous to reproduce these Articles for better appreciation of their submissions. “243T. Reservation of seats – (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. (2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the 15 Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. (5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. 243U – Duration of Municipalities, etc.- (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer : Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Municipality shall be completed. - (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved 16 Municipality would leave continued under clause (1) had it not been so dissolved.” 11. A reference is also required to be made to Article 243-ZG, which bars interference by courts in electoral matters except by way of election petition presented to such authority and in such manner as is provided for by or under any law made by legislature of a State. “243ZG. Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution,- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZF shall not be called in question in any court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 12. We have heard learned counsel for the parties at great length. From both sides lengthy arguments were advanced. With the assistance of learned counsel for the parties we went through the entire material on record and the provisions of the Constitution and different Statutes so also the judgments of the Supreme Court and of this Court cited in the course of arguments.At the outset, we would like to deal with the prayers made in Writ Petition No.538 of 2007 and in Misc Civil Application No.858 of 2007 in Writ Petition No.426 of 2006. 17 13. Mr Lotlikar, learned senior counsel for the petitioners in Writ Petition No.538 of 2007, after inviting our attention to Article 243-T, submitted that the Constitution of India has been specifically amended to introduce a special Chapter pertaining to institutions of Local Self Government, namely the panchayats and the Municipalities. He submitted that sub-Article (6) of Article 243-T is worded in the same fashion as in the provision of Article 15 (4) and Article 16(4), which provide for reservations in favour of SC, ST and OBCs. So far as reservation of seats in favour of OBCs is concerned, Article 243T(6) of the Constitution provides that Legislature of a State shall be at liberty to provide for such reservation in favour of OBCs. In other words, he submitted that Article 243-T(6), in fact, grants constitutional protection to the laws which State Legislature may choose to enact to provide for reservation for OBCs. The law made by the State of Goa in view of this constitutional provision, has protection of the constitution and, therefore, has the flavour of constitutional mandate. He submitted, the State Legislature has enacted a law in view of this protection granted under this provision and, therefore, there is a statutory obligation, backed by constitutional provision in favour of OBCs. The State is, therefore, obliged to discharge this obligation and provide for reservations in favour of OBCs. He then submitted, whether reservation is to be provided on the basis of 2001 census or otherwise, is totally non issue. He submitted that by virtue of the amendment to provision of section 9 of the 18 Municipalities Act, reservation of seats for OBCs is liable to be made in proportion to the population within the concerned municipal area. In short, he submitted that in view of the provisions of Article 243-T(6) and section 9 of the Municipalities Act, it is clear that it is a constitutional mandate to have members belonging to SC, ST and OBC in the municipal councils belonging to these particular Caste, Tribe and Classes. After inviting our attention to Article 243U of the Constitution, Mr Lotlikar submitted that the time limit for holding elections of PMC and SMC as contemplated under this Article has already elapsed. The question , therefore, according to Mr Lotlikar, has to be addressed to in the present petition, is whether elections to the two municipalities should be held in view of the mandate under Article 243U or Article 243T read with section 9 of the Municipalities Act or whether the balance should be struck between the two provisions, in the interest of making the municipal council a true representative of the populace, within its jurisdiction. He, therefore, submitted that in order to ensure a proper compliance with the constitutional mandate, some time must be given to the Government to complete necessary exercise which would ensure as far as possible that the reservations are provided on a scientific and accurate basis. He submitted that these provisions are made with a view for upliftment of backward classes in view of historical reasons which 19 cannot be overlooked while dealing with the matters such as one in the hand. Insofar as Kishansing Tomar Vs Municipal corporation of the City of Ahmedabad and Ors., (2006) 8 Supreme Court Cases 352 is concerned, Mr Lotlikar submitted that the said decision does not lay down that one mandatory provision of the constitution shall be given a go by for the purpose of adhering to another constitutional provisions. The Supreme Court in the said case was not concerned of the conflict between the two provisions of the Constitution. It was simply examining the issue of holding municipal election within the time prescribed under article 243U of the constitution. The facts of the said case, therefore, in the context of which the Supreme Court was examining the provisions of Article 243U was totally different. Mr Lotlikar, further submitted that the State Election Commission cannot insist upon holding elections in compliance with the one constitution provision which would be violative of another constitutional provision or even a law made by the State Legislature. The State Election Commission has miserably failed in its duties in this regard for ensuring that the Government took proper steps to make reservations in respect of SC, ST and OBCs before the elections were due. Lastly, he submitted that though 2001 census is in place, it would be 20 impossible to make reservations on the aforementioned census, firstly because classification of three important categories, namely Gawda, Kunbi and Velip as Scheduled Tribes, has taken place for the first time in 2003 after the completion of 2001 census. He, therefore, submitted that if the elections are held on the basis of 2001 census these three categories so also OBCs would not get representation in the newly elected municipal councils. He submitted that in order to comply with the mandate laid down in the decision of the Apex Court in the case of Indra Sawney Vs.