In WP NO.238 of 2022 – BOM HC – Bombay HC quashes Goa govt’s decision to postpone Panchayat elections; says imperative for State Election Commission to independently apply mind in deciding poll dates Justices M S Sonak & R N Laddha [28-06-2022]

Read Order: MR SANDEEP VAZARKAR AND ORS v. STATE OF GOA AND ORS 

Mansimran Kaur

Mumbai, June 30, 2022: The Bombay High Court Bench at Goa has quashed the state government’s decision to postpone elections to the 186 panchayat bodies while strongly observing that the Supreme Court has held in several judgements that there is an “inviolable” Constitutional mandate to hold the elections without delay before the stipulated five years expire.

“This is the fourth instance in the last two decades when the State Government and the SEC have avoided or failed to comply with the constitutional mandate in Article 243-E,” the High Court observed.

The Division bench of Justice M.S. Sonak and Justice R.N. Laddha, placing heavy reliance on the case of Suresh Mahajan V/s. State of Madhya Pradesh & Anr,  observed that it  failed  to comprehend as to how the state government, in the purported exercise of powers under Section 15 of the Goa Panchayat Raj Act or Rule 10 of the Election Procedure Rules, 1996, could have on May 26, 2022  decided to postpone the elections to September 2022, that is, way beyond the period prescribed in the constitutional mandate.

While holding that “there was absolutely nothing wrong with the State Government and SEC consulting one another. However, considering the constitutional position of the SEC, independent application of mind by the SEC was imperative” in deciding the poll dates.

The term of 186 Panchayats in the State of Goa, including the Village Panchayat of Socorro, ended on June 18, 2022.  The Goa State Election Commission (SEC) proposed to hold elections on May 29, 2022, June 4, 2022, June 11, 2022, June 15, 2022 and June 18, 2022. 

However, the SEC claimed  that no elections could be held for want of the State Government issuing Notification under Rule 10(1) of the Goa Panchayat and Zilla Panchayat (Election Procedure) Rules, 1996, appointing the date for holding of the election. The State Government refuted this charge. They stated that the SEC was responsible for the failure.

“Neither offers convincing reasons for the failure to observe the Constitutional mandate,” the High Court noted.

The Court noted that the elections to constitute a Panchayat must be completed before the expiry of its duration specified in Article 243-E(1) of the Constitution is not a legal position that admits to any serious dispute or debate. Reliance was placed in the case of Kishansing Tomar V/s. Municipal Corporation of the City of Ahmedabad & Ors. In the aforesaid case, the Apex Court explained that the object of inserting part IX-A in the Constitution was to ensure that elections to local bodies were held regularly and on time. The Court held that there is a constitutional mandate to complete the elections before the stipulated five years expire. 

The bench held that “the State Government cannot insist on the postponement of the elections, thereby defying the constitutional mandate in Article 243-E that the Hon’ble Supreme Court has described as ‘inviolable’”. The bench was of the opinion that holding or not holding elections was primarily a matter for the SEC to decide or take the first call.

The Court noted that: “In the above case, even the SEC, while agreeing that it was mandatory to hold elections to 185 Panchayats before 30.01.2007, meekly agreed with the State Government’s “policy decision” to defy the constitutional mandate by simply observing that no elections could be held until the Director of Panchayats issues Notification regarding the formation of wards, etc.”

The Court eventually concluded by observing that the SEC had  already made its stand clear that it had no issues in  holding the elections and that it had taken the necessary steps for complying with the constitutional mandate. The SEC’s affidavit states that the election process can be completed within 30 days once the poll date is finalised under Rule 10 of the Election Procedure Rules, 1996. 

Thus, in light of the aforesaid findings, the Court quashed the State Government’s order to postpone the elections and directed the State Government to issue a notification under Rule 10 of the Election Procedures Rule, 1996 appointing the date for holding of elections to 186 Panchayats in the State of Goa within three days of the judgement. It also directed the State Government and the SEC to ensure that the elections are held and completed no later than 45 days from the date of the judgement.

Accordingly, the writ petitions were disposed of.