Derek Almeida
The High Court of Bombay at Goa has dismissed a petition filed by Sarvesh Naik, Bala Mapari and Anil Hoble seeking postponement of elections to 186 panchayats “by some reasonable period” to enable the government to make provisions for reservations for Other Backward Classes.
The questions of law before the Bench, comprising Justices M S Sonak and R N Laddha were: Can panchayat elections be postponed and is reservation for OBCs a statutory mandate as claimed by the petitioners?
The advocate general, in reply to the petition, stated that the government neither supports nor opposes any of the reliefs sought by the petitioners.
The State Election Commission, which was represented by Adv S N Joshi, stated that the SEC had sought data of OBCs from the state government well in time, but the government failed to submit such data. Hence, the SEC, following the law as laid down by the Supreme Court in the Suresh Mahajan case, issued the notification to proceed with panchayat elections without reservations for OBCs.
Adv Pravin Faldessai, counsel for the OBC Commission, submitted that the government sought data from the commission on 30 June, 2022. Within three days of receiving the letter, the commission submitted 80 per cent of the data and promised to make available the balance data within 7-8 days.
The court while arriving at a decision noted, that in related petitions the government had sought postponement of panchayat elections on grounds of monsoons and not because time was required to collect data to enable OBC reservations.
On the first issue of whether OBC reservation is a “statutory right” as claimed by the petitioners, the High Court noted that the provisions for reservations for OBCs are “enabling”. “These provisions nowhere mandate reservation for OBCs at local bodies.
The court also noted that the State legislature had made a provision for reservation to OBCs in panchayats but had not mandated the same.
Section 7 of the act clearly states that in every panchayat seats “shall” be reserved for SC, ST and women. However, in the case of OBC the section states that seats “may, by notification be reserved” for OBCs.
Since the word “may” was used with respect to reservations for OBC the court concluded that “no constitutional or statutory mandate as such exists to provide reservation for OBCs”.
On the issue of whether elections could be postponed until reservation for OBCs is complete, the court ruled that “the Supreme Court has not approved the action of postponing elections to collect the empirical data to comply with the triple test. The Hon’ble Supreme Court held that the constitutional mandate (to hold elections) could not be disregarded for such a reason”.
The High Court also referred to another Supreme Court ruling (Kishansing Tomar vs Municipal Corporation of the City of Ahmedabad) in which the apex court held that “the constitutional mandate of holding election to panchayats before expiry of the period specified in Article 243-E(1) is inviolable”.
It, therefore, upheld the notification of the SEC to hold elections on August 10 without OBC reservations.