1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 487 of 2011 1. Mr. Digambar Uttam Kalangutkar age 46 years, married, Member of Village Panchayat of Verla-Canca, r/o. H.No.180/A, Naikwada, Verla- Goa 2. Mrs. Varsha Bala Naik, age 38 years, married, Member of Village Panchayat of Verla-Canca, r/o H.No.435, Canca Bandh, Goa 3. Mrs. Amita Vasudev Korgaonkar Age 35 years, married, Member of Village Panchayat Of Verla-Canca, r/o. H.No.352 Khalapwada, Canca-Goa 4. Mr. Santosh Vishwanath Bhaidkar age 39 years, married, Member of Village Panchayat of Verla- Canca, r/o. H.No.77/A, Frietas Wada, Verla-Goa 5. Mr. Sagar Shankar Lingudkar age 38 years, married, Member of Village Panchayat of Verla-Canca, R/o.H.No.397/A, Demelwada, Canca-Goa .. Petitioners. V e r s u s 1. Block Development Officer, Bardez, Mapusa-Goa 2. Director of Panchayat, Directorate of Panchayat Junta House, Panaji-Goa 3. Chief Secretary, Government of Goa, Secretariat, Porvorim-Goa 2 4. Secretary, Village Panchayat of Verla Canca, Verla-Canca, Bardez-Goa 5. Mrs. Vanessa Milton Marquis age 38 years, married, Sarpanch of Village Panchayat of Verla-Canca, r/o Pintowada, Verla-Goa 6. Mr. Laxmikant H. Bicholkar age 38 years, married, Dy Sarpanch of Village Panchayat of Verla-Canca, r/o Abbaswada, Canca- Goa 7. Mrs. Anita D'Souza, Age 42 years, married, Member of Village Panchayat of Verla-Canca, Frietas Wada, Verla-Goa 8. Village Panchayat of Verla Canca, Through Secretary, Having office at Verla-Canca, Bardez-Goa 9. Mr. Shivprasad Naik, Presently working as Block Development Officer, Bardez Taluka, at Mapusa-Goa r/o H.No.9/13/2, Khadpabandh, Ponda-Goa .. Respondents Mr. P. A. Kamat, Advocate for the petitioners. Mr. S. Mahambrey, Additional Government Advocate for respondent nos.1, 2, 3 and 9. Mr. A. F. Diniz, Advocate for respondent no.4. Mr. Deep Shirodkar , Advocate for respondent no.5. Mr. Ryan Menezes, Advocate for respondent no.6. 3 Mr. V. A. Lawande, Advocate for respondent no.7. Mr. A. D. Bhobe, Advocate for respondent no.8. CORAM : A. P. LAVANDE & U. V. BAKRE,JJ Date : 12 th /13 th December, 2011. ORAL JUDGMENT : (Per A. P. LAVANDE, J.) Heard Mr. Kamat, learned Counsel for the petitioners, Mr. Mahambrey, learned Additional Government Advocate for respondent nos.1 to 3 and 9, Mr. Diniz, learned Counsel for respondent no.4, Mr. Shirodkar, learned Counsel for respondent no.5, Mr. Menezes, learned Counsel for respondent no.6 and Mr. Bhobe, learned Counsel for respondent no.8. 2. By this petition, the petitioners have sought the following reliefs : (i) This Honourable Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondent no.1 to withdraw the letter dated 2/8/2011 bearing no.BAR/EOVP/NO- 4 CONF/VC/2011-12/3781 or this Hon'ble Court may be pleased to declare the said letter as issued by respondent no.1 as illegal and void. (ii) This Honourable Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondent no.4 to place before this Hon'ble Court purported resolution dated 27/6/2011 allegedly passed by panchayat and declare the same as illegal and void. (iii) This Honourable Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondent no.1 to convene and hold without any obstruction meeting of Village Panchayat Verla Canca as per Section 51 of Goa Panchayat Raj Act 1994 to discuss and decide both the notices of no confidence motion moved by the petitioners on 29/07/2011 against the Sarpanch and Deputy Sarpanch of the Village Panchayat Verla Canca. (iv) This Honourable Court be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondent nos.1 to 4 to restrain 5 respondent nos.5 and 6 to function as the Sarpanch and Deputy Sarpanch of the Village Panchayat Verla Canca or in the alternative this Hon'ble Court may be pleased to restrain respondent nos.5 and 6 from functioning as the Sarpanch and Deputy Sarpanch of the Village Panchayat Verla Canca. (v) This Hon'ble Court may be pleased to impose heavy cost on respondent nos.1 to 4 for failure to perform statutory duties and ignoring the judgments of this Hon'ble Court in W.P. No.540/2007 (Joseph Sequeira Vs. Block Development Officer) dated 22/1/2008 and Writ Petition No.488/2007 (Joseph Sequeira Vs. Minino D'Souza) dated 17/10/2007 and for forcing the petitioners to approach this Hon'ble Court. 3. Briefly, the facts leading to filing of the present petition are as under : The Village Panchayat Verla- Canca respondent no.8 consists of 9 elected members. There is no dispute that one of the members is disqualified and presently, there are only 8 elected members. At the relevant time, respondent no.5 was acting as a Sarpanch and respondent no.6 as Deputy Sarpanch of the Panchayat. On 20th June, 2011, the 6 petitioners herein moved no confidence motion for removal of respondent nos.5 and 6 from the post of Sarpanch and Deputy Sarpancha respectively and served a notice on Block Development Officer ('BDO' for short) for no confidence motion in terms of Section 51(2) of the Goa Panchayat Raj Act, 1994 (The Act' for short'). Pursuant to the said notice, a meeting was convened on 27th June, 2011 by the BDO through Secretary, Village Panchayat vide notice dated 22nd June, 2011. on 24th June, 2011 at the instance of respondent no.6, the additional Director of Panchayat granted ex-parte stay to the meeting convened on 27th June, 2011. In view of the stay granted, the observer, who was appointed for the meeting did not attend the meeting. The petitioners after having been informed about the stay granted, left the place of the meeting. However, it appears that report was made by the Secretary of the Village Panchayat that the meeting of two members of the Village Panchayat was held on 27th June, 2011 in which respondent no.5 and respondent no.7 were present. The two members resolved that no confidence motion was defeated although the quorum for the meeting was three. Obviously, therefore, on 27th June, 2011, the meeting could not have been held in the absence of quorum and also in view of the stay granted by the Additional Director of Panchayats. 7 4. The petitioners herein filed Writ Petition no.404/2011 for direction to hold the meeting for considering the resolution of no confidence motion for removal of respondent nos.5 and 6. In the said petition, the BDO filed affidavit stating therein that the meeting could not be held in view of stay granted by the Additional Director of Panchayat and 15 days period within which the meeting had to be convened had already expired. In view of this statement, the petitioners withdrew the petition and issued fresh notice dated 29th July, 2011 for convening the meeting for considering the resolution of no confidence motion against respondent nos.5 and 6. By letter dated 2nd August, 2011, respondent no.9 who was at the relevant time functioning as BDO informed the petitioners that the meeting could not be convened as the resolution of no confidence motion had already been defeated in the meeting dated 27th June, 2011 and as such, no fresh meeting could be convened for considering the said resolution for a period of six months. Challenging the communication dated 2nd August, 2011, the petitioners have filed the present petition seeking the above mentioned reliefs. 5. Mr. Kamat, learned Counsel appearing for the petitioners submits that no meeting could have been held on 8 27th June, 2011 in view of admitted position that only two members were present and in the absence of quorum, which required 3 members to be present, no meeting could have been held on 27th June, 2011. Secondly, in view of the stay granted by Additional Director of Panchayats, meeting could not have been held on 27th June, 2011. Learned Counsel further submitted that the action of respondent no.9 is in clear breach of the ratio laid down by this Court in the case of Joseph Sequeira and others Vs. Mr. Menino; 2008(1) GLR 48 wherein he was a party. In the said case, the Division Bench of this Court has held that the rules framed under the Panchayat Act are mandatory. In the case of Joseph Sequeira and others Vs. Block Development Officer and others; 2008(1) GLR 209, the Division Bench of this Court held that in order to defeat the passing of no confidence motion, majority of total number of members of Panchayat have to support the resolution and in case the majority does not support the resolution, the motion cannot be treated as defeated. There is no dispute that in the said petition, respondent no.9 was also the party, though not by name. Learned Counsel further submits that by interim order, this Court has restrained respondent nos.5 and 6 from functioning as Sarpanch and Deputy Sarpanch and pursuant to the said order, the Government has appointed 9 Administrator. Mr. Kamat, therefore, submits that in view of the clear ratio laid down in the case of Joseph Sequeira (supra) respondent no.1 be directed to hold the meeting in terms of the notice of no confidence motion dated 29th July, 2011 given by the petitioners and the communication dated 2nd August, 2011 of respondent no.9 be quashed and costs be imposed on respondent no.9 for acting in clear breach of the law laid down by this Court to which he was a party. 6. Mr. Mahambrey, learned Additional Government Advocate for respondent nos.1 to 3 and 9 and the learned Counsel appearing for the other respondents submit that they will have no objection if the direction is given to BDO to hold meeting to consider the notice of no confidence motion given by the petitioners. 7. In view of the rival submissions, the following points arise for determination in Writ Petition : (i) Whether respondent no.9 was justified in holding that no confidence motion moved by the petitioners on 29th July, 2011 could not be moved since earlier motion dated 20th June, 2011 was defeated in the meeting dated 27th June, 2011 ? (ii) Whether the action of respondent no.9 in issuing 10 communication dated 2nd August, 2011 is in clear breach of the Division Bench judgment of this Court in the case of Joseph Sequeira and others Vs. Block Development Officer and others; 2008(1)GLT 209 to which he was a party and as such, the costs deserves to be imposed on him ? 8. We have carefully considered the rival submissions, perused the record and the judgments relied upon. 9. In order to appreciate the rival contentions, it would be appropriate to refer to Section 51 of The Act. Section 51 of The Act reads as under : Section 51. Motion of no confidence against Sarpanch and Deputy Sarpanch- (1) Every Sarpanch or Deputy Sarpanch shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of a total members of the Panchayat at a meeting specially convened for the purpose : Provided that no such notice of motion of no- confidence shall be taken into consideration unless it is signed by the majority of the Members: Provided further that no such notice of motion of no-confidence shall be moved within six months after the meeting of Panchayat defeating the motion of no confidence. 11 (2) The notice of no confidence motion shall be delivered to the Block Development Officer who shall convene a special meeting of the Panchayat to consider the no confidence motion within fifteen days from the receipt of the notice thereof. (3) A copy of notice of no confidence motion shall also be delivered to the Secretary of the Panchayat. (4) The procedure to be followed for such a special meeting shall be such as may be prescribed. 10. Section 51 of The Act was interpreted by the Division Bench of this Court in the case of Joseph Sequeira (supra) in which it has been held that if the motion of no confidence is not defeated with the support of majority of the members constituting the Panchayat, it cannot be said that the motion of no confidence has been defeated in terms of second proviso to Section 51 of The Act. In the present case, admittedly, the first meeting which was fixed pursuant to no confidence motion moved by the petitioners, was stayed by the Additional Director of Panchayat. Indisputably, there were only two members present in the meeting scheduled on 27th June, 2011. As such, the view taken by respondent no.9 that first resolution was defeated in the meeting held on 27th June, 2011, cannot be accepted in view of the clear ratio laid down in the case of Joseph Sequeira (supra). In terms of the judgment in the case of Joseph Sequeira (supra), the resolution had to be supported by at least five members since 12 there were only eight members of the Panchayat. There is no dispute that respondent no.9, who was holding the post of Block Development Officer at the relevant time, was party respondent to Writ Petition No.540/2007 in which the above proposition has been laid down. Respondent no.9 was, therefore, bound to follow the judgment of this Court and he was expected to find out whether the motion of no confidence moved by the petitioners was defeated in accordance with the provisions of Section 51 of The Act, as interpreted by this Court in the case of Joseph Sequeira (supra). Obviously, respondent no.9 has failed to perform his duty and follow the judgment of this Court in the case of Joseph Sequeira (supra), which was binding on him, to which he was a party. The action of respondent no.9 is, therefore, patently unsustainable in law and deserves to be deprecated. We, therefore, find merit in the submission of Mr. Kamat that appropriate costs deserve to be imposed on respondent no.9 for acting contrary to the judgment of this Court in the case of Joseph Sequeira (supra) to which he was a party. We, therefore, impose costs on respondent no.9 which are quantified at Rs.5,000/- (Rs. five thousand only.) The costs shall be paid to the petitioners within a period of eight weeks. 11. In view of the above discussion, we hold that the 13 communication dated 2nd August, 2011 by which respondent no.9 has held that the petitioners were not entitled to move motion of no confidence in terms of notice dated 29th July, 2011, is patently unsustainable in law and the same deserves to be quashed and set aside. 12. In the result, therefore, the communication dated 2nd August, 2011 issued by respondent no.9 is quashed and set aside. Respondent no.1 shall fix the date for consideration of the motion of no confidence against respondent nos.5 and 6 in accordance with the provisions of Section 51 of The Act, within a period of four weeks. 13. Interim relief granted by this Court shall continue till the decision is taken on the no confidence motion moved by the petitioners. 14. Writ Petition stands disposed of in aforesaid terms. A. P. LAVANDE, J. U. V. BAKRE, J. SMA