1 ` IN THE HIGH COURT OF BOMBAY AT GOA ELECTION PETITION NO. 2 OF 2002. Jose Philips Domingo D'Souza, son of late Domingo D'Souza, aged 46 years, married, resident of 265, Villa Dom Rine, Behind Tilak Maidan, Vasco- da- Gama, Goa. .... Petitioner. Versus 1. Shri Rajendra Vishwanat Arlekar, son of late Vishwanath Arlekar, major in age, married, resident of G-1, Golden Hill Apartment,Mangor, Vasco- da- Gama, Goa. 2. Carol Taher Daud, major in age, married, resident of Flat no.6, 4th Floor, Lakshajyot complex, Vaddem, Vasco- da- Gama, Goa. 3. Thalmann Pradeep Pereira, son of Pradeep Gerald Pereira, major in age, married, resident of Karma Enclave, Ground Floor, Vaddem, Vasco- da- Gama, Goa. 4. Shrikant Dattaram Verenkar, son of Dattaram Verenkar, 2 major in age, married, resident of Damodar Polyclinic, Vasco- da- Gama, Goa. 5. Smt. Tara Kerkar, major in age, r/o E-83, Housing Board Colony, New-Vaddem, Vasco- da- Gama, Goa. 6. Shri Jaykar Mahabal Shetty, s/o Mahabal Shetty, major in age, married, r/o Nilam Apartment, Behind Vaddem Lake, Vasco- da- Gama, Goa. 7. Shri Andrew John Paulo Rodrigues, major in age, married, r/o House No.287- 2, behind State Bank of India, Vasco- da- Gama, Goa. 8. Pascoal Domingo D'Souza, major in age, married, r/o 265, Ville Dom- Rine, Kharviwada, Behind Tilak Maidan, Vasco- da- Gama, Goa. 9. The Returning Officer, ) 25- Vasco- da- Gama Assembly ) Constiituency, Vasco- da- Gama, ) Goa, having his office at the ) Office of Dy. Collector, Mormugao,) Vasco- da- Gama, Goa. ) ) 10. The Chief Electoral Officer, ) State of Goa, Office of the Chief ) Electoral Officer, Altinho, ) Panaji, Goa. ) 3 11. The Election Commissioner, ) Election Commission of India, ) having Office at "Nirvachan Sadan" ) Ashoka Road, New Delhi. ) Pin - 110001, and ) ) 12. Goa State Scheduled Castes ) and Other Backward Classes ) Finance and Development Corporation ) Ltd. Through its Managing Director, ) with Office at 4th Floor, Patto Centre, ) Near Kadamba Bus Stand, ) Panaji, Goa. )... Respondents. (Respondent nos.9 to 12 deleted vide Order dated 13.09.2002 on Exh.7 in Election Application No.5/02) Mr. J.E. Coelho Pereira, Senior Advocate with Shri S. Karpe, Advocate for the Petitioner. Shri V.P. Thali with Ms. G. Pednekar, Advocates for the Respondent No.1. CORAM: N. A. BRITTO, J. DATE: 27th MAY, 2005. J U D G M E N T: The petitioner herein is one of the defeated candidates while the respondent No.1 ("respondent", for short) is the returned candidate at the elections held on 30.5.02 to the 25- Vasco- da- Gama Assembly Constituency in the State of Goa. 4 2. In this petition filed under Section 100(1)(a) and (b), of the Representation of the People Act, 1951, the petitioner has challenged the election of the respondent on the allegation that the respondent was disqualified to be chosen as a member of the Legislative Assembly of Goa on the ground that he had held an office of profit being the Chairman of the Goa State Scheduled Castes and Other Backward Classes Finance & Development Corporation Limited ("Corporation", for short) and for having indulged in corrupt practices at the said election. 3. The respondent was appointed as a Chairman of the said Corporation by the Government by Order No.13- 4-90/SWD/Part dated 9.2.2000 and published on Gazette dated 9.3.2000 - Exh.61 in exercise of the powers conferred under Cause 116 of the Articles of Association of the said Corporation by re- constituting the Board of Directors of the said Corporation and the respondent held that position until 11.6.04 when the Board was re- constituted again with one Advocate Shri Adpaikar as the Chairman and other Directors except one who was retained. 5 4. The Corporation was initially registered as a Government Company under the Companies Act, 1956 with the Government of Goa having 51% of shares and the Central Government having 49% of shares on or about 2.4.1990 as Goa State Backward Classes Finance and Development Corporation Ltd. and the name of the said Corporation was changed to what it is at present on 12.8.93. The promoters were all Government servants, so also the first Directors, as can be seen from the memorandum and Article of Association - Exh.42. 5. The Legislative Assembly was dissolved on 27.2.02 and as per the Schedule of Elections announced by the Election Commission - Exh.55 the model Code of Conduct came into effect from 17.4.02, the last date for filing nominations was 13.5.02. and the respondent was declared as the returned candidate. 6. The following issues were framed by this Court after hearing he learned counsel on behalf of both the parties :- (1) Whether the Petitioner proves that the Respondent 6 No.1 being the Chairman of the Goa State Scheduled Castes and Other Backward Classes Finance and Development Corporation Ltd. was holding an office of profit under the State Government on the date of Election to 125- Vasco- da- Gama Constituency ? (2) Whether the Petitioner proves that the respondent has committed corrupt practices as enumerated in para 14 clauses (a) to (f) of the petition ? (3) Whether the petitioner proves that he is entitled to be declared as duly elected ? (4) What relief ? What Order ? 7. I shall first deal with the case of the petitioner as regards Issue No.2. 8. The petitioner enumerated the corrupt practices allegedly committed by the respondent in para 14, clauses (a) to (f), but the petitioner in the course of his evidence, abandoned the said 7 allegations except those of clauses (d) and (f) of para 14 of the petition. 9. As per the petitioner, the respondent personally distributed cheques to a number of beneficiaries under the Dayanand Social Security Scheme on 18.5.02 after the nomination. Dayanand Social Security Scheme is a scheme of the Social Welfare Department of the Government of Goa and the Life Insurance Corporation. The petitioner obtained the list of the D.S.S.S. beneficiaries for Mormugao Taluka from Life Insurance Corporation of India, Panaji, Goa. Shri Audesh Narayan Tripathi - serial No.230 of the said list was handed over cheque dated 1.5.02 for Rs.500/- by the respondent on 18.5.02. Shri Khanolkar Vinayak Vishnu at serial No.239 was handed over the cheque dated 1.5.02 for Rs.500/- on 18.5.02. Smt. Tarabai Gaude at serial No.241 was handed over cheque dated 1.5.02 for Rs.500 /- on 18.5.02. All the three cheques were drawn on Corporation Bank, Panaji. These acts of the respondent are in violation of the Code of Conduct and amounts to corrupt practice in the election. Likewise, the petitioner pleaded that the respondent granted sanction for a loan 8 of Rs.80,417 /- under letter dated 25.4.02 from the funds of the Corporation in violation of the Code of Conduct which amounts to corrupt practice in the election. 10. The respondent denied the said allegations of clauses (d) and (f) of para 14 of the petition levelled by the petitioner and further denied that he committed any act in violation of the Code of Conduct or which amounts to corrupt practice in the election. As far as the loan is concerned, the respondent stated that the grant of sanction for the said loan is part of the duty of the Chairman of the said Corporation and the same was not in violation of any Code of Conduct and the said act did not amount to corrupt practice as defined under the Representation of the People Act, 1951. The respondent also denied that the respondent committed any act that amounts to corrupt practice in the elections. 11. In order to prove the said allegations of corrupt practices, the petitioner examined P.W.2 Sanjiv Gadkar who is the Director of Social Welfare of the Government of Goa, P.W.3 Chitra Naik who is 9 the Branch Manager of L.I.C., P.W.5 Audesh Tripathi, P.W.6, Tarabai Gaude, both beneficiaries of the said scheme and P.W.7 Balaji Satardekar, the loanee. 12. The petitioner in his evidence stated that the Government of Goa had floated a scheme of social security entitled "Dayanand Social Security Scheme" under which the pension amount of Rs.500/- is paid to senior citizens, single women and disabled persons and that the said payments on being sanctioned by the Social Welfare Department and the Government of Goa are effected by the L.I.C. of India. He stated that the objective of the said scheme was to provide financial assistance to the most vulnerable sections of the society and, inter alia, covers beneficiaries from communities of toddy tappers, coconut pluckers, etc. The petitioner further stated that during the time of election, as part of his election campaign, in order to induce voters to vote for him, the respondent himself distributed cheques of Rs.500/- each under the said scheme to Audesh Tripathi, Vinayak V. Khanolkar and Tarabai J. Gaude on 18.5.02. As per the petitioner, the respondent being the Chairman of the Corporation and the Corporation being a 10 part of the Social Welfare Department, the respondent secured from the said Department the sanction of the application of the said persons and disbursed the said amounts to coincide with the election, so that the respondent could induce the voters to vote for the respondent and therefore the respondent by the said acts, committed corrupt practices and succeeded in getting not only the votes of the said beneficiaries of the loans granted as well as the persons to whom the cheques were distributed but also their friends and family members and thereby the respondent committed corrupt practices during the election which has materially affected the election in favour of the petitioner. In cross- examination the petitioner admitted that he had not stated in the petition that the result of the elections had been materially affected because of the corrupt practices of the respondent or because he held an office of profit. He also stated that regarding the cheques, the persons who have been named by him, came and informed him but he did not remember the dates, but they informed him immediately after 18.5.02 when the cheques were distributed. Again the petitioner stated that the cheques were distributed to the said three voters to induce them to vote and that this fact was known to him before the 11 filing of the petition. The petitioner again admitted that he had not alleged the fact of inducement in the petition and when he was questioned again as to why he had not made the said allegation. the petitioner dodged an answer and stated that he had mentioned about the same in the petition. 13. P.W.2, Gadkar, the Director of Social Welfare of the Government of Goa produced a proforma application to be made for pension under the said Scheme and produced the Rules regulating the said Scheme. 14. P.W.3, Chitra Naik stated that the said pension scheme is operated through the L.I.C. and that initially the cheques were drawn and sent to the Directorate of Social Welfare. She stated that the funds to make payment for the said pension came from the Government. She confirmed that the pension was paid to Audesh Tripathi, Vishnu Khanolkar and Tarabai Gaude from April, 2002. 15. P.W.5, Audesh Tripathi who is an Ex- Congress (I) 12 General Secretary of the Mormugao Constituency and member of GCC(I) stated that initially he received Rs.500/- as pension from the Government. He stated that he knew that he got the pension through the Department of Social Welfare and L.I.C. and that Mr. Arlekar (respondent) during the last elections, came with a cheque of pension of one month and gave it to him being the first payment of his pension. He stated that Mr. Arlekar came along with 40 to 50 persons and told him that his pension was passed and he asked him to vote for him and at that time Mr. Arlekar was going from house to house asking for votes. He further stated that Mr. Arlekar did not tell him as to who had managed to get the pension for him. In cross- examination he stated that he did not remember as to how many months prior to that he had made the application. He further stated that when Mr. Arlekar came with the cheques, he was going from house to house to canvass for votes. He denied the suggestion that Mr. Arlekar had not the brought the cheque and handed it over to him. When he was asked as to who he had voted for, he stated that his vote was confidential and he did not wish to tell about the same. 13 16. P.W.6, Tarabai Gaude, although initially stated that Mr. Arlekar had brought the pension cheque and given it to her, to cast her vote, later she stated that Mr. Arlekar gave the cheque and told her that she should vote for him. In cross- examination she stated that she knows that the pension comes from the Government. She further stated that nobody forced her to vote for any particular person and when she was asked on behalf of the petitioner itself as to whom she had voted, she replied that one is not supposed to tell about the same. She denied that Mr. Arlekar had not given the cheque to her. 17. P.W.7, Bala Satardekar, who is an autorickshaw driver stated that he had made an application in February, 2002 for a loan of Rs.80,000 /- , but later on, on seeing the application he stated that his application is dated 19.3.02. According to him, Mr. Arlekar was the Chairman of the said Corporation and was their neighbour and in order to sanction the said loan, he had to ask for a favour and therefore he met Mr. Arlekar and told him that he would make an application for a loan, and after making the application he met him again and told him that he had applied for 14 the said loan. He stated that in April of that year, one person by name Nuruti was sent by Mr. Arlekar and that the loan was sanctioned and he should go and collect the loan. But when the said Nuruti came to his residence, he was absent and it is the wife who told him about the same, but when he went to the office of the Corporation he came to know that the loan was sanctioned but that the rest of the formalities were not completed and he had to bring some witnesses and comply with the said formalities and therefore he again approached Mr. Arlekar and then Mr. Arlekar told him he was busy with the elections and had no time to go to the office and that he would go after the elections and do the work. P.W.7 Bala Satardekar further stated that Mr. Arlekar also told him that his loan was sanctioned and he should help him by voting for him and by telling his friends and relatives to vote for him and he told his friends and relative that Mr. Arlekar having done his work that they should vote for him. According to him he canvassed for votes amongst 450 people and he was confident that at least 400 persons must have voted for Mr. Arlekar. He further stated that he got his loan in October, 2002 when Mr. Arlekar was still the Chairman. In cross- examination he admitted that his application 15 was complete when he filed it and he was asked whether if Mr. Arlekar was not the Chairman whether his loan would not be sanctioned and he answered by stating that he thought it to be so, but again stated that even when Mr. Arlekar was the Chairman, they took time to make payments of the loan. He was asked whether in case the petitioner was the Chairman, his work could not be done and he answered by stating that he could not say so and in case the petitioner was the Chairman he would have approached him. In further cross- examination he stated that he was entitled for the loan as per Rules when he applied for the same and further stated that in case Mr. Arlekar was not there he would not have got the loan that early as it took some time for him to get the money on account of the elections. 18. Section 123 of the Representation of the People Act, 1951 describes what are corrupt practices and which include in terms of sub- section (1) bribery which has been explained in clauses (A) and (B) which at the foot of it has an explanation; undue influence in terms of sub- section (2); an appeal by a candidate or his agent or by any other person with the consent of a candidate or his 16 election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language, etc. in terms of sub- section (3), the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language, in terms of Sub- section (3-A); the propagation of the practice or the commission of sati in terms of sub- section (3-B) and propagation of false statements in terms of sub- section (4) etc. 19. It is not necessary to reproduce Section 123 of the Representation of the People Act, 1951, in detail, considering the submissions made. The petitioner has not been able to bring the facts stated by P.W.5 Audesh Tripathi, P.W.6 Tarabai Gaude and P.W.7 Bala Satardekar within the purview of any of the sub- sections of Section 123 of the Representation of People Act, 1951 which as already stated defines 'corrupt practices' and all that has been stated on behalf of the petitioner is that the petitioner's case comes under the Explanation below clause (B) of sub- section (1) of Section 123 of the said Act which reads as follows:- " Explanation - For the purposes of this clause 17 the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78. " 20. As can be seen from the evidence of P.W.3 Chitra Naik, P.W.4 Olinda Fernandes and P.W.5 Audesh Tripathi, at the relevant time the pension applications under Dayanand Social Security Scheme were processed through the Directorate of Social Welfare and the cheques issued by the L.I.C. were forwarded back to the Directorate of Social Welfare, Panaji, it is quite probable that the respondent being the Chairman of the Corporation and then an activist of the Bharatiya Janata party, collected the said cheques from the Directorate of Social Welfare and handed over the cheques at the time of canvassing of the votes to P.W.5 Audesh Tripathi and P.W.6 Tarabai Gaude. I am not inclined to believe the respondent that he did not hand over the said cheques to them. On the contrary, I am inclined to believe both P.W.5, Audesh Tripathi and 18 P.W.6, Tarabai Gaude, that the respondent did hand over the cheques to them. Petitioner has not proved that the respondent was in any way instrumental in getting the said cheques issued or passed. In my view only because the respondent had distributed the cheques to the said P.W.5, Audesh Tripathi and P.W.6, Tarabai Gaude at the time of canvassing for votes and probably with a view to impress upon them that he had done some work for them, the same did not amount to corrupt practice as defined under the Representation of the People Act, 1951. As far as P.W.7, Bala Satardekar, is concerned, I am not inclined to accept his evidence as it does not inspire confidence. He had applied for loan much before the elections were announced and was disbursed the loan much after the elections. Only a sanction order was issued in respect of the loan which was applied for by him and he was called upon to complete the rest of the formalities. As already seen, when P.W.7, Bala Satardekar, approached the respondent, Bala Satardekar was allegedly told that the respondent was busy with the elections and had no time to go to the office and that he would go after the elections and do his work, and if this is so, I find it difficult to believe that P.W.7, Bala Satardekar, would go about 19 canvassing for votes for the respondent saying that his work was done by him. P.W.7, Satardekar, is only a rickshaw driver who claims he canvassed votes for the respondent mostly amongst his passengers and claims that he is confident that the respondent got, on that count, at least 400 votes which claim is too good to be true. That apart the said loan must have been sanctioned by the Board of Directors (as later admitted by the respondent at page 32 contrary to what he stated in para 15 of his affidavit) and there was no special favour which the respondent had done towards him. In fact, P.W.7 concedes that the disbursement of loan took a long time inspite of the fact that the respondent was the Chairman of the Corporation and in any event, it must be stated that only because the sanction order was passed by the said Corporation, it did not amount to committing any corrupt practices by the respondent. Issue No.2 therefore has got to be held as not proved. 21. That should take us to Issue No.3. No submission has been made that the petitioner would be entitled to be declared as elected, in case the petitioner succeeds in the petition on the other ground pleaded by him. The petitioner has stated that the 20 respondent got 5606 votes while he got 4509 votes. He was asked as to on what basis he could have got the remaining votes and he replied by stating that the respondent got the said votes by making use of the machinery of the Corporation namely the vehicle for propaganda, the mobile phone to contact people and officers and he got more votes than him. He was again asked as to how he could say that the other votes which Mr. Arlekar got, would have come to him and he answered by stating that he was confident that he would have got them as he presumed that they were his voters. However, as already stated, he admitted that he had not pleaded in the petition that Mr. Arlekar had made use of the machinery of the Corporation namely the vehicle for propaganda, mobile phone to contact people and officers and also the Scheme. It is well settled that no amount of evidence can be accepted in support of a plea which has not been taken. In my view this issue has got to be held as not proved on the failure of the petitioner to prove that the Respondent got more votes either because he indulged in corrupt practices or because he used the machinery of the Corporation. 22. Returning to the first issue, it is the case of the petitioner 21 that on the date of filing nomination and the date of election, the respondent was disqualified to be chosen to fill the seat under the Constitution of India and the Representation of the People Act, 1951. As per the petitioner, the Government of Goa had formed the said Corporation and incorporated the same on 2.4.90 and that the Chairman, Vice-Chairman and the Directors of the said Corporation are appointed by the Government of Goa and the first Board of Directors consisted of Government officials and subsequent Board of Directors, some non- official members were also appointed on the Board and the Government of Goa has the right and power to remove or