1 IN THE HIGH COURT OF BOMBAY AT GOA LETTERS PATENT APPEAL NO. 6 OF 2011 Shri Sandip Arjun Vazarkar, 40 years, married, Indian National, Member of Village Panchayat of Socorro, r/o H. No.1032, Zoswado, Socorro, Bardez, Goa. ... Appellant versus 1. Shri Rajesh Madhukar Khautankar, major, married, Indian National, r/o H. No. 1057/4, Zoswado, Socorro, Bardez, Goa. 2. Shri Yuvraj Shantaram Mayekar, major in age, r/o Zoswado, Socorro, Porvorim, Bardez, Goa. 3. Shri Rajesh Narayan Sawaikar, major in age, r/o Zoswado, Socorro, Porvorim, Bardez, Goa. 4. The Returning Officer for Bardez III & Joint Mamlatdar of Bardez III, Mapusa, Bardez, Goa. ... Respondents Shri S. G. Dessai, Senior Advocate with Shri Pavithran A. V., Advocate for the appellant. 2 Shri V. B. Nadkarni, Senior Advocate with Shri N. Noronha, Advocate for respondent no.1. Shri M. Salkar, Government Advocate for respondent no.4. CORAM : SMT. R. P. SONDURBALDOTA & F. M. REIS, JJ. DATE OF RESERVING THE ORDER: 30TH SEPTEMBER, 2011. DATE OF PRONOUNCING THE ORDER: 21ST OCTOBER, 2011. ORDER(Per R. P. SONDURBALDOTA, J.) This appeal is directed against the order dated 29th August, 2011 passed by the learned Single Judge rejecting application of the appellant for interim reliefs in Writ Petition No.495 of 2011. 2. The facts leading to the present proceedings are that the appellant was elected member/panch to Village Panchayat of Socorro from Ward No.VIII as a candidate from reserved category of OBC. He claimed to belong to Bhandari Naik Caste. Respondent 3 No.1 challenged his election vide Election Petition No.14 of 2007 on the ground that the appellant does not belong to Bhandari Naik Community and that the caste certificate dated 11th April, 2007 issued to him had been obtained by him by misrepresentation and by playing fraud. The Administrative Tribunal by its order dated 29th July, 2011 allowed the election petition and declared the election of the appellant as null and void. By the same order, the Tribunal declared respondent no.1 as elected from Ward No.VIII of Village Panchayat Socorro. Pursuant to the order, Director of Panchayats issued notification dated 8th August, 2011 declaring respondent no.1 as elected member of Village Panchayat Socorro. The notification was published in the Official Gazette dated 11th August, 2011. On the same day, the Block Development Officer gave oath of office to respondent no.1. Since then, respondent no.1 has been functioning as member of Village Panchayat Socorro. 3. On 11th August, 2011, the appellant filed Writ Petition No.490 of 2011 to challenge correctness and legality of the order of the Administrative Tribunal and took out Civil Application No.195 4 of 2011 for an interim injunction to restrain respondent no.1 from acting/operating/participating as an elected member/panch from Ward No.VIII of Village Panchayat Socorro. By the order impugned in the present appeal, the Civil Application was dismissed with the following observations:- “Admittedly, respondent no.1 has been presently functioning as a member of Village Panchayat after having been declared elected by the Tribunal. I find merit in the submission of Mr. Nadkarni that even if the applicant has made out a very strong prima facie case, the other two factors i.e. balance of convenience and irreparable loss and injury are in favour of respondent no.1. Therefore, even if Mr. Dessai is right in contending that the Tribunal could not have declared respondent no.1 elected, it would not be appropriate at this stage to restrain respondent no.1 from discharging functions as a member of Village Panchayat. Moreover, by separate order passed today in the Writ Petition, I have issued Rule and Rule is made returnable on 14th November, 2011. Therefore, in my considered opinion, the applicant is not entitled to interim relief sought for by him”. 4. The challenge by the appellant to the impugned order is on the ground that the same is contrary to the mandate of Section 21 of the Goa Panchayats Raj Act, 1994. The appellant contends that the election held from Ward No.VIII was a multicolor contest where 5 there were more than two candidates for one seat. Therefore, even if the elected candidate is subsequently found to be disqualified, the candidate securing more votes than the remaining candidates cannot be declared as elected. According to the appellant, on disqualification of the elected candidate the only course open was to hold fresh elections from the ward. It has also been contended that refusal of the interim injunction to the appellant on the ground of want of irreparable loss despite the prima facie finding of a strong prima facie case having been made out, is perverse and indicates total non application of mind. 5. Respondent No.1 opposes the appeal on the ground of its maintainability as well as on merit. 6. Shri V. B. Nadkarni, the learned Senior Counsel appearing for respondent no.1 submits that the impugned order being an interim order, is not an “order/judgment” within the meaning of Clause 15 of Letters Patent Act. We are not inclined to accept the contention raised on maintainability of the appeal in 6 view of the decision of the Division Bench of this Court(Aurangabad Bench) in Sambhaji S/o Ramji Patil Umrekar v. District Supply Officer and others(1998(2) Bom C. R. 332) cited by Shri S. G. Dessai, the learned Senior Counsel for the appellant wherein this Court relying upon a decision of the Apex Court has held that an order refusing to grant stay after admission of petition would amount to order/judgment within the meaning of Clause 15 of the Letters Patent Act. The relevant observations from the decision are as follows:- “6. The nature of orders/judgments falling within the meaning of Clause 15 of the Letters Patent came to be examined by the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania and another, reported in MANU/SC/0036/1981 : [1982]1SCR 187 and in para 120 of the said judgment, Their Lordships of the Apex Court have set down certain principles which might guide in deciding whether an order passed by the trial Judge within the meaning of the Letters Patent, and more specifically the interlocutory orders which may be treated as judgments are set out thereunder. In the instant case, learned Single Judge has admitted the petition but refused to grant stay and we are of the considered view that the said order passed by the Single Judge declining the stay will amount to order/judgment within the meaning of Clause 15 of the Letters Patent in pursuance of the guidelines laid down by the Supreme Court in the case of Shah Babulal Khimji(supra)”. 7 We therefore hold that the appeal herein is maintainable. 7. On merits in support of his submission that respondent no.1 could not have been declared elected to the seat fallen vacant by setting aside the election of the appellant, Shri Dessai relies upon a decision of the Apex Court in Prakash Khandre v. Dr. Vijay Kumar Khandre and others reported in ((2002) 5 SCC 568). He submits that since it has already been held by the learned Single Judge that there is a prima facie case on this count made out by the appellant, an interim relief of injunction to restrain respondent no.1 from acting as member/panch of Village Panchayat Socorro ought to have followed. Shri Dessai strongly urges that once a prima facie case of the order passed being not in accordance with law is made out the two other aspects of grant of interim injunction i.e. existence of balance of convenience in favour of the appellant and existence of irreparable loss, damage or injury to the appellant must take a backseat. Otherwise according to him, it would amount to perpetuating the wrong. 8 8. We find ourselves unable to agree with the submission advanced by Shri Dessai. It is well settled that the relief of injunction is a discretionary relief and it is governed by three principles: (a) existence of prima facie case, (b) balance of convenience and (c) irreparable loss, damage or injury to the party seeking injunction. All the three principles are of equi-importance. The importance of the other two principles has been elaborated in the decision of the Apex Court in Dalpat Kumar and another v. Prahlad Singh and others(AIR 1993 SC 276), cited by Shri Nadkarni, while holding that satisfaction of existence of prima facie by itself is not sufficient. The Apex Court observes as follows:- “Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” 9 must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued”. In the same judgment, the Apex Court has further observed that the phrases “prima facie case”, “balance of convenience” and “irreparable loss” are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances but is always hedged with sound exercise of judicial discretion to meet the ends of justice. 9. Therefore making out prima facie case as regards the allegations made forming basis of the interim application does not absolve the appellant of the responsibility of establishing the other two aspects. Unless he establishes that the balance of convenience 10 in the facts of the case is in his favour and that he would suffer some irreparable harm, damage or injury the discretion of grant of injunction cannot be exercised in his favour. The election of the appellant having been set aside, he cannot even claim that he will suffer any individual loss, damage or injury. Therefore, the learned Single Judge has rightly held that the appellant has failed to establish that he would suffer irreparable loss if the order of injunction is refused to him. In the facts of the case, the balance of convenience is in favour of respondent no.1. By the notification dated 8th August, 2011, the Director of Panchayats has declared him as elected member of Village Panchayat Socorro. On 11th August, 2011 he was given oath of office. Since then, he has been functioning as member of Village Panchayat Socorro till date. Therefore until the order declaring him as elected member of Village Panchayat is not set aside, at the final hearing of the writ petition filed by the appellant he cannot be prevented from functioning as a member of Village Panchayat Socorro. 11 10. Shri Nadkarni submits that the grant of interim injunction is a discretionary relief. Therefore, the appellate Court would normally be slow in interfering with the discretion under the appeal. If the discretion has been seen to have been exercised reasonably and in a judicial manner, the fact that the appellate Court would have taken a different view would not justify interference with the discretion exercised. In this connection, Shri Nadkarni relies upon a decision of a Single Judge of this Court in Deshmukh and Co. v. Avinash Vishnu Khandekar and others reported in 2005(3) Mh.L.J. 387. In the said decision, the learned Single Judge has relied upon the observations of the Apex Court in the case of Wander Ltd. and another v. Antox India P. Ltd.(1990(Supp) SCC 727). The observations of the Apex Court quoted in the judgment read as follows:- “The appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material 12 and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion”. We need not dilate further on this argument since we have already agreed with the learned Single Judge that the appellant has failed to establish that he would suffer any irreparable loss, damage or injury if the interim injunction is not granted to him and that the balance of convenience is in his favour. In the circumstances, the appeal is dismissed in limine. SMT. R. P. SONDURBALDOTA, J. F. M. REIS, J. RD