Case Note & Summary
The petitioner, an advocate, filed a writ petition under Article 226 of the Constitution of India before the High Court of Bombay at Goa challenging the constitutional validity of Section 9(1)(b) of the City of Panaji Corporation Act, 2003 and seeking quashing of notifications dated 28.04.2021 and 05.05.2021 nominating respondent nos.5 and 6 as councillors. The petitioner claimed that the provision, to the extent it permitted nomination of persons with special knowledge or experience in engineering, architecture, archaeology, heritage, etc., went beyond the constitutional limit prescribed in Article 243R(2)(a)(i) which only allowed representation of persons having special knowledge or experience in municipal administration. He also alleged that respondents 5 and 6 did not possess the required special knowledge or experience in municipal administration and that the nomination process was arbitrary and non-transparent. The respondents, through the Advocate General and senior counsel, defended the nominations, arguing that additional qualifications could be prescribed without detracting from the constitutional provision, that the nominees possessed the requisite special knowledge, that the doctrine of pleasure applied, and that the scope of judicial review was minimal. The court heard extensive arguments on the constitutional validity of the provision and the legality of the nominations. The available judgment excerpt ends during the submissions of respondent no.1, and the final decision of the court is not included in the provided text.
Headnote
A) Constitutional Law - Municipalities - Validity of State Legislation - Constitution of India, Article 243R(2)(a)(i); City of Panaji Corporation Act, 2003, Section 9(1)(b) - Petitioner challenged Section 9(1)(b) to the extent it permits nomination of persons with special knowledge or experience in engineering, architecture, archaeology, heritage, etc. as exceeding constitutional limit of 'special knowledge or experience in municipal administration'. Advocate General submitted that additional qualifications can be prescribed without detracting from Article 243R. Court considered the rival submissions on constitutional validity (Paras 4, 11).
B) Municipal Law - Nominated Councillors - Qualification of Special Knowledge or Experience - City of Panaji Corporation Act, 2003, Section 9(1)(b) - Petitioner alleged that respondents 5 and 6 did not possess special knowledge or experience in municipal administration, while Advocate General argued that material before Government was sufficient. Court noted the dispute regarding qualifications (Paras 5, 8, 12).
C) Administrative Law - Judicial Review of Nominations - Scope of Judicial Review and Doctrine of Pleasure - Constitution of India, Article 243R - Advocate General submitted that doctrine of pleasure applies to nominated councillors and scope of judicial review is minimal; petitioner argued judicial review is warranted when essential qualifications are absent. Court considered these submissions (Paras 7, 12).
D) Constitutional Law - Fair and Transparent Procedure - Arbitrariness in Nominations - Constitution of India, Article 14 - Petitioner alleged no advertisement, no attempt to select best talent, nominations for political considerations; Advocate General argued Government had broad discretion. Court considered submissions on arbitrariness and non-transparent procedure (Paras 6, 12).
Issue of Consideration
Whether Section 9(1)(b) of City of Panaji Corporation Act, 2003 is ultra vires Article 243R(2)(a)(i) of Constitution of India to the extent it permits nomination of persons with special knowledge or experience in engineering, architecture, archaeology, heritage, etc.; whether notification dated 28.04.2021 and order dated 05.05.2021 nominating respondent nos.5 and 6 as councillors are liable to be quashed; whether respondent nos.5 and 6 possess special knowledge or experience in municipal administration; whether fair and transparent procedure was followed in making nominations
Law Points
- Article 243R(2)(a)(i) of Constitution of India enables State legislature to provide for representation of persons having special knowledge or experience in municipal administration
- Section 9(1)(b) of City of Panaji Corporation Act
- 2003 permits nomination of persons with special knowledge or experience in engineering
- architecture
- archaeology
- heritage
- etc.
- challenge that provision exceeds constitutional limit
- doctrine of pleasure applies to nominated councillors
- scope of judicial review minimal
- fair and transparent procedure required
- no bar in C.C.P. Act for nominating candidates who lost polls
Case Details
2022 LawText (BOM) (07) 103
Writ Petition No.246 of 2021
Aires Rodrigues (Petitioner in person), S.S. Kantak, Simoes Kher, Preetam Talaulikar, D. Pangam, Deep Shirodkar, Raunaq Rao, Nitin N. Sardessai, S. Sardessai
Corporation of the City of Panaji, Director of Urban Development/Municipal Administration, Secretary (Urban Development), State of Goa, Shri Kabir Filipe Pinto Makhija, Shri Kishor Sastry
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Nature of Litigation
Writ petition under Article 226 of Constitution of India challenging constitutional validity of Section 9(1)(b) of City of Panaji Corporation Act, 2003 and quashing of nominations of respondent nos.5 and 6 as nominated councillors.
Remedy Sought
Petitioner sought striking down clause (b) to sub-section (1) of Section 9 of C.C.P. Act to the extent it permits persons with special knowledge or experience in engineering, architecture, archaeology, heritage, etc. to be nominated, and quashing notification dated 28.04.2021 and order dated 05.05.2021 nominating respondents 5 and 6.
Filing Reason
Petitioner alleged that respondents 5 and 6 were nominated under an unconstitutional provision and lacked special knowledge or experience in municipal administration; nominations were arbitrary and non-transparent.
Issues
Whether Section 9(1)(b) of City of Panaji Corporation Act, 2003 is ultra vires Article 243R(2)(a)(i) of Constitution of India to the extent it permits nomination of persons with special knowledge or experience in engineering, architecture, archaeology, heritage, etc.
Whether notification dated 28.04.2021 and order dated 05.05.2021 nominating respondent nos.5 and 6 as councillors are liable to be quashed.
Whether respondent nos.5 and 6 possess the requisite special knowledge or experience in municipal administration.
Whether fair and transparent procedure was followed in making nominations.
Submissions/Arguments
Petitioner submitted that Section 9(1)(b) goes beyond Article 243R(2)(a)(i) which only allows representation of persons having special knowledge or experience in municipal administration, not engineering, architecture, archaeology, heritage, etc.
Petitioner submitted that respondent nos.5 and 6 do not possess special knowledge or experience in municipal administration, and their nomination is illegal, unconstitutional, null and void.
Petitioner submitted that no fair and transparent procedure was followed; there was no advertisement inviting applications, no attempt to select best talent, and nominations were for political considerations.
Advocate General submitted that constitutional validity issue is academic because respondents 5 and 6 have special knowledge or experience of municipal administration; additional qualifications can be prescribed without detracting from Article 243R.
Advocate General submitted that doctrine of pleasure applies to such nominations and scope of judicial review is minimal; relied on Om Narayan Agarwal, Vinayak Parihar and Krishna Borate cases.
Senior Advocate for C.C.P. submitted that there is no bar in C.C.P. Act for nominating candidates who may have lost at the polls; relied on Satya Narayan Prasad v/s. Election Commission of India.
Judgment Excerpts
The Petitioner, by instituting this Writ Petition under Article 226 of the Constitution of India, seeks the following reliefs: (a) For striking down the provision in clause (b) to sub-section (1) of Section 9 of the City of Panaji Corporation Act, 2003 (C.C.P. Act) to the extent this provision permits persons with "special knowledge or experience in engineering, architecture, archaeology, heritage, etc." to be nominated to the Municipal Corporation; (b) For quashing notification dated 28.04.2021 and order dated 05.05.2021 nominating respondent nos. 5 & 6 as nominated members of the Corporation.
Mr. Rodrigues submits that the impugned notification is ultra vires C.C.P. Act because it refers to nominating respondents nos. 5 & 6 as "co-opted Councillors." He submits that there is no provision under the C.C.P. Act for co-option of any Councillors, and in the absence of such provision, the impugned notification is ultra vires and liable to be struck down.
Article 243-R (2)(a)(i) of the Constitution makes provision enabling the State legislature to provide for the representation in a Municipality of persons having special knowledge or experience in Municipal administration. He submits that the Constitution does not provide nominating persons with "special knowledge or experience in engineering, architecture, archaeology, heritage, etc.".
Procedural History
Polls held on 20.03.2021 to constitute the Corporation; results declared on 23.03.2021; respondent no.6 contested elections but was not elected; Councillors sworn in on 30.03.2021 and Mayor elected; file for nominating respondents nos.5 & 6 processed on 01.04.2021; Mayor moved note on 07.04.2021 for nomination of respondents 5 & 6 as Councillors; Commissioner wrote to Director of Urban Development on 09.04.2021; State issued impugned notification on 28.04.2021 nominating respondents 5 & 6 as Councillors; writ petition filed in 2021; reserved on 5 July 2022; pronounced on 11 July 2022.
Acts & Sections
- City of Panaji Corporation Act, 2003: Section 9(1)(b)
- Constitution of India: Article 226, Article 243R(2)(a)(i)
