IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO.84 AND 88 OF 2002. WRIT PETITION NO. 84 OF 2002. Shri Luizinho Joaquim Faleiro, r/o "Luchel", Caminho de Monte, Borda, Margao, Goa. ... Petitioner. VERSUS 1. The State of Goa, through its Chief Secretary, having office at Secretariat, Panaji, Goa. 2. The Governor of Goa, Raj Bhavan, Goa, and 3. Shri Manohar Parrikar, Chief Minister, Govt. of Goa, Secretariat, Panaji, Goa. ... Respondents. Shri V.B. Nadkarni, Senior Advocate with Shri Y.V. Nadkarni, Advocate for the Petitioner. Shri A.N.S. Nadkarni, Advocate General with Shri P.A. Kamat & Shri H.D. Naik, Addl. Govt. Advocates for the Respondent No.1. Shri R.N. Trivedi, Addl. Solicitor General with Shri Sandeep Agarwal, Advocate for the Respondent No.2. Shri M.S. Usgaonkar, Senior Advocate with Shri V.P. Thali, Addl. Adv. General with Ms. G. Pednekar, Addl. Govt. Advocate for the Respondent No.3. WRIT PETITION NO. 88 OF 2002. 1. Shri Jeetendra Deshprabhu, major of age, Member of Legislative Assembly, Pernem Constituency, r/o "Rauraje Palace", Pernem, Goa, and 2. Mr. Francisco Silveira, major of age, elected from St. Andre Constituency, r/o Dandi, Agassaim, Ilhas, Goa. ... Petitioners. VERSUS - 2 - 1. The Governor of Goa, Raj Bhavan, Dona Paula, Goa. 2. The Government of Goa, through its Chief Secretary, having his office at Secretariat, Panaji, Goa. 3. Shri Manohar Parrikar, The Chief Minister of Goa, having his office at Secretariat, Panaji, Goa. 4. Shri Ravi Naik, Deputy Chief Minister, having his office at Secretariat, Panaji, Goa. 5. Shri Ramakant Khalap, Minister for Water Resources and Information Technology, having his office at Secretariat, Panaji, Goa. 6. Shri Digambar Kamat, Minister for Power and Urban Development, having his office at Secretariat, Panaji, Goa. 7. Shri Haji Shaikh Hassan Haroon, Minister for Industries and Craftsman Training, having his office at Secretariat, Panaji, Goa. 8. Shri Prakash Velip, Minister for Cooperation & Fisheries, having his Office at Secretariat, Panaji, Goa. 9. Shri Pandurang Raut, Minister for Transport, Printing & Stationery, having his office at Secretariat, Panaji, Goa. 10. Dr. Suresh Amonkar, Minister for Health & Provedoria, having his office at Secretariat, Panaji, Goa. 11. Shri Sanjay Bandekar, Minister for Civil Supplies, - 3 - Sports, Youth Affairs, Information & Publicity, having his office at Secretariat, Panaji, Goa. 12. Shri Prakash Phadte, Minister for Town & Country Planning & Forest, having his office at Secretariat, Panaji, Goa. 13. Shri Manohar Babu Azgaonkar, Minister for Panchayat, Raj & Housing, having his office at Secretariat, Panaji, Goa. 14. Shri Filipe Neri Rodrigues, Minister for Tourism, R.D.A. & Weights & Measures, since resigned, major, having his office at Secretariat, Panaji, Goa. 15. Shri Jose Philip D’Souza, Minister for Revenue & River Navigation, having his office at Secretariat, Panaji, Goa; and 16. Shri Ramarao G. Dessai, Minister for Agriculture, Art & Culture, having his office at Secretariat, Panaji, Goa. ... Respondents. Shri S.K. Kakodkar, Senior Advocate with Shri J.J. D’Souza, Advocate for the Petitioners. Shri D.K. Trivedi, Addl. Solicitor General with Shri Sandeep Agarwal, Advocate for the Respondent No.1. Shri A.N.S. Nadkarni, Advocate General with Shri P.A. Kamat & Shri H.D. Naik, Addl. Govt. Advocates for the Respondent No.2. Shri M.S. Usgaonkar, Senior Advocate with Shri V.P. Thali, Addl. Advocate General with Ms. G. Pednekar, Addl. Govt. Advocate for the Respondents No.3 to 8, 10 to 14 and 16. Shri S.G. Bhobe, Advocate for the Respondents Nos.9 and 15 (Absent). - 4 - CORAM: CORAM: CORAM: V. C. DAGA, J. V. C. DAGA, J. V. C. DAGA, J. DATE OF RESERVING THE JUDGMENT: 23rd July, 2002. DATE OF PRONOUNCING THE JUDGMENT: 1st August, 2002. J U D G M E N T: These two Writ Petitions under Article 226 of the Constitution of India have been referred to me in view of the split judgment by the two learned Judges of the Goa Bench of this Court. While Justice A.S. Aguiar was of the view that these petitions ought to be allowed and Rule granted therein be made absolute, another learned Judge, Justice P.V. Hardas, took a view that these Writ Petitions ought to be dismissed and Rule granted therein be discharged. The Division Bench did not formulate points of difference and ordered that these petitions be placed before the Hon’ble Chief Justice for being referred to a third Judge. The learned Chief Justice was pleased to refer these petitions for my opinion as a third Judge under Clause 36 of the Letters Patent. That is how these petitions were placed before me for hearing and opinion. On maintainability of reference to a third Judge: On maintainability of reference to a third Judge: On maintainability of reference to a third Judge: 2. At the first instance, when these petitions were placed on board for directions Shri S.G. Dessai, learned Senior Counsel, at the relevant time, appearing - 5 - for the petitioners in Writ Petition No.88/2002 has raised an objection to this reference being violative of Section 98(2) of Civil Procedure Code (C.P.C. for short). According to him, no point of law arose for consideration or at any rate, no point of law was framed or stated by the learned Judges of the Division Bench which expressed difference of opinions, inasmuch as the matter is referred to a third Judge without following the procedure of Section 98(2) C.P.C.; the reference to a third Judge is a nullity. 3. The learned Advocate General appearing for the State of Goa pointed out that Section 98(2) has no application to the facts of these cases and that the contention has no merit whatsoever and that the provision of Section 98(3) has obviously been overlooked by the learned counsel for the Petitioners. As per that sub-section nothing in Section 98 shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. Admittedly, this High Court has Letters Patent. The learned Advocate General pointed out that Clause 36 of the Letters Patent provides that in the event of difference of opinion between two Judges as to the decision on any point, the case shall be heard upon that point by one or more of the other Judges and the case must be decided on the majority of the opinion. He relied upon the judgment of the Apex Court in the case of S.P.G. S.P.G. S.P.G. - 6 - Committee v. M.P. Dass Chela, Committee v. M.P. Dass Chela, Committee v. M.P. Dass Chela, A.I.R. 1998 S.C., 1978, wherein the judgment of the High Court of Punjab and Haryana in Mahant Swaran Dass v. Shiromani Gurudwara Parbandhak Committee, Amritsar, A.I.R. 1981 Punjab and Haryana, 110 with other rulings taking the same view that the provisions of Section 98(2) C.P.C. are not applicable to High Courts which are governed by Letters Patent and the matter can be referred to a third Judge on a difference of opinion between the two Judges even on point of facts, has been approved. 4. In the above view of the matter, it is clear that the reference does not suffer from any legal or factual infirmity. All the questions and issues based on facts and law involved in the petitions are open for the opinion of the third Judge. In this backdrop, both petitions were heard on merits to render my opinion on the questions of fact and law both. OUTLINE CHRONOLOGY. 5. Goa which was liberated on 19th December, 1961 along with Daman and Diu from 451 years of Portuguese Colonial Rule, became the 25th State of Indian Union when it was conferred Statehood on 30th May, 1987. 6. The State of Goa has a Legislative Assembly - 7 - with a strength of 40 elected members. The Governor is the Head of State and is advised by the Council of Ministers headed by the Chief Minister. 7. Goa, a tiny emerald land on the west coast of India, with its natural scenic beauty, abundant greenery, attractive beaches and temples and churches with distinctive style of architecture and above all, hospitable people with a rich culture milieu, has always been suffering from bad political weather. In the recent past, the evil of political defections has been a political phenomenon in Goa. The other disturbing picture of this phenomenon emerging on the screen of these petitions is multiple acts of defections by the same persons or set of persons; indifference on the part of the defectors to political proprieties, constituency preference or public opinion and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections. The frequent crossing of the floor and changing allegiance from one party to another by the legislators of the State appears to have damaged the political fabric of the State of Goa. 8. In order to appreciate the controversy, it would be necessary to state brief matrix of facts leading to the present petitions. Though the petitioners are - 8 - different but legal and factual challenges are identical. Hence no separate outline chronology giving rise to these two separate petitions is necessary. 9. The petitioners were the members of the Goa State Legislative Assembly which came to be dissolved by the impugned Order dated 27th February, 2002. The petitioner in Writ Petition No.84/2002 was the Leader of the Opposition in the House and was the Chief Minister for some time till 24th November, 1999. He was required to resign due to reduction in strength of his party Indian National Congress, on account of defection of 11 members of his party. 10. The challenge in the above two petitions is to two Orders, both dated 27th February, 2002 bearing Nos. G/2/2002/2881 and G/2/2002/2882 respectively; whereby the Governor of Goa dissolved the State Legislative Assembly with immediate effect and under second Notification ordered the Council of Ministers headed by the Chief Minister of Goa to continue to carry on functions as a Council of Ministers until its successor takes office under the Constitution. The Notification dated 27th February, 2002 dissolving the Legislative Assembly reads hereunder :- " RAJ BHAVAN ORDER No. G/2/2002/2881 - 9 - In exercise of the powers conferred upon me under Article 174(2)(b) of the Constitution of India, and all other powers enabling me in that behalf, I, Mohd. Fazal, Governor of Goa, on the advice of the Council of Ministers, hereby dissolve the Legislative Assembly of Goa, with immediate effect. Dona Paula. Dated:27th February, 2002.(MOHD.FAZAL) Governor of Goa RAJ BHAVAN " 11. The petitioners challenge the aforesaid Order of the Governor dissolving the State Legislative Assembly under Article 174(2)(b) of the Constitution of India being unconstitutional, void and inter alia on the ground that the Chief Minister in order to avoid to face the vote of no-confidence which was imminent; opted for dissolution of the House on the aid and advice of the Chief Minister and his Council of Ministers; which was not likely to continue for want of majority. The said action in their opinion is contrary to the well settled principles governing dissolution of Legislative Assembly. 12. It is alleged that on 13th February, 2002 the House was summoned by the Governor for 13th March, 2002 for passing the Budget. The dissolution was ordered within less than two weeks prior to the said meeting, without taking into consideration the fact that the State would be thrown into a state of financial crisis if the Budget was not passed. The Governor did not even consider - 10 - the consequences of his dissolving the House prematurely. The act of dissolution was a mindless act without any concern for public welfare and meant only for satisfying objectives of the party in power in the State. 13. It is further alleged that subsequent to the Notification dated 13th February, 2002 convening the meeting of the Legislative Assembly for approving the Budget on 13th March, 2002, there was no change of circumstances in the following two weeks preceding decision to dissolve the Assembly on 27th February, 2002, warranting dissolution of the House. The Chief Minister being aware of the imminent loss of confidence in the House, resorted to subterfuge and persuaded the Governor to dissolve the House, on the alleged aid and advice of the Chief Minister alleged to be supported by the Council of Ministers. The dissolution of the House on the advice of the Chief Minister, who did not command stable majority, was an abuse of power on the part of the Governor. 14. It is further alleged that the Chief Minister reported at a Cabinet meeting on 27th February, 2002, scheduled at 10.30 a.m. discussed the issue of the State Assembly, despite the fact that the issue was not on the Agenda circulated to the Ministers and despite the fact that the Cabinet had not agreed to the dissolution, the - 11 - Chief Minister proceeded to meet the Governor at 11.15 a.m. on the same day and advised dissolution of the Legislative Assembly. The Chief Minister produced before the Governor the Cabinet advice for dissolution signed only by himself. The advice of the Chief Minister was not of the Council of Ministers but it was a decision taken by the Chief Minister unilaterally with mala fide intent of avoiding imminent fall of the Government which was clear from the newspaper articles appearing in the daily newspapers. The Governor has acted in undue haste without even seeking any information from the Council of Ministers or from the Leader of the Opposition. The Governor ought not to have agreed to the dissolution of the Legislative Assembly, since there were more than two years left for the expiry of the term of the House. 15. It is further alleged that the mala fides inherent in the advice of the Chief Minister percolated in the decision making process of the Governor as such the said decision stood vitiated, and that the Governor faulted in the discharge of his constitutional duty. The failure on the part of the Governor to explore the continuation of the Assembly for full term is a failure on the part of the Governor in protecting and upholding the Constitution. 16. On the aforesaid canvas of facts, the - 12 - petitioners are seeking a declaration that both the impugned orders of the Governor of Goa dated 27th February, 2002 be declared as unconstitutional, null and void and be set aside. Subsequent events: Subsequent events: Subsequent events: 17. The respondent No.1 filed affidavit dated 10.7.02 affirmed by the Chief Secretary to the Government of Goa bringing on record subsequent events which have occurred during the pendency of these petitions. The said affidavit revealed that on 11.5.02 a Notification was issued by the Election Commission of India, declaring the general elections to the Legislative Assembly of the State of Goa to be held on 30th May, 2002 in pursuance of the election programme, notified by the Chief Election Commissioner of Goa. Accordingly on 30th May, 2002 the elections to the Assembly of the State of Goa were held and new Assembly was constituted under Notification dated 2.6.2002 a copy of which is produced on record showing details of 40 returned candidates of the Assembly of the State of Goa in which the names of the petitioners also figure. The text of the Notification is reproduced hereinbelow:- "EXTRAORDINARY GOVERNMENT OF GOA - 13 - DEPARTMENT OF ELECTIONS Office of the Chief Electoral Officer Notification ________ No.308/GOA-LA/2002:- Whereas, in pursuance of Notification No.58-2002/ELEC, issued by the Governor of Goa on 6th May, 2002, under sub-section (2) of Section 15 of the Representation of the People Act, 1951 (43 of 1951), a General Election has been held for the purpose of constituting a new Legislative Assembly for the State of Goa; and Whereas, the results of the elections in all the Assembly Constituencies in the said General Election have been declared by the Returning Officers concerned; Now, therefore, in pursuance of Section 73 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby notifies the names of the members elected for those constituencies, along with their party affiliation, if any, in the SCHEDULE enclosed to this notification. By Order, C.R. BRAHMAN, Secretary to the Election Commission of India. SCHEDULE No. and Name of Name of Party Assembly Constituency Elected Affi- Member liation (if any) 2. Pernem Deshprabhu Indian Jitendra National Raghuraj Congress 13. St. Andre Silveira Indian Francis National Manuel Congress 32. Navelim Faleiro Indian - 14 - Luizinho National Congress By Order, C.R. BRAHMAM, Secretary to the Election Commission of India" 18. It is further brought on record that on 3.6.2002 Respondent No.3 was sworn in as Chief Minister of Goa along with the other 12 Cabinet Ministers and the first session of the Assembly was held on 13.06.2002. In the said session business including presentation of the State budget was done on 15.6.2002, Vote on Account Bill was passed which was assented by the Government. The next session of the Assembly was being summoned to be held on 22nd July, 2002. The said affidavit was taken on record. The petitioners did not file any counter affidavits. The facts brought on record by way of subsequent events are thus not in dispute. Rival submissions: Rival submissions: Rival submissions: 19. S/Shri S.K. Kakodkar, V.B. Nadkarni, learned Senior Counsel addressed this Court in support of the petitioners. Learned Additional Solicitor General of India, Shri R.N. Trivedi, learned Advocate General of Goa, Shri A.N.S. Nadkarni, Shri M.S. Usgaonkar, Senior Counsel appearing for the respondent No.3 sought to support the impugned action of the Governor. - 15 - Submission of Petitioners: Submission of Petitioners: Submission of Petitioners: 20. The petitioners contend that the impugned order of the Governor dissolving the Legislative Assembly on the aid and advice of the Council of Ministers does not state that it has been made in the exercise of discretion of the Governor as is purported to be made out in the affidavit of the respondents. The petitioners further submit that the affidavit of the Chief Secretary stating that the Order is made in exercise of discretion of the Governor is contrary to the Governor’s own Order. The Chief Secretary cannot be permitted to make a statement and contradict the order of the Governor. Reliance is placed on Mohinder Gill v. Election Commission Mohinder Gill v. Election Commission Mohinder Gill v. Election Commission (1978) 1 SCC 407. 21. It is further contended that in view of the Judgment of the Apex Court in the case of Shamsher Singh v. Shamsher Singh v. Shamsher Singh v. State of Punjab, State of Punjab, State of Punjab, (1974) 2 SCC 831 at 885 para 154, the order for dissolution has to be passed on the aid and advice of the Council of Ministers. That is why according to the petitioners in the present case the order speaks that the said order has been made under Article 174(2)(b) "on the aid and advice of the Council of Ministers". 22. The learned counsel for the petitioners relying upon Constituent Assembly Debates; Official Report and report of Sarkaria Commission contended that the - 16 - Constitution had contemplated that in the matter of dissolution, the Governor would be required to act in his discretion but this provision was subsequently deleted on the ground that the Governor need not discharge this function as per his discretion and would fully be advised in all these matters by the Council of Ministers. Attention was invited to the Constituent Assembly Debates Official Report, Vol.VIII, Page 41, Vol.III and Sarkaria Commission Report, Para 4.11.16. 23. Based on above foundation, the Petitioners pressed into service a Division Bench Judgment of this Court in the case of Pratapsingh Rane v. Governor of Goa, Pratapsingh Rane v. Governor of Goa, Pratapsingh Rane v. Governor of Goa, A.I.R. 1999 Bombay, 53 and relied upon para 29 of the said judgment, relevant portion thereof reads as under :- " (i) The exercise of executive power in accordance with the provisions of the Constitution by or under the Order of the Governor wherein full judicial review is available. (ii) Orders passed by the Governor on aid and advice of the Council of Ministers headed by Chief Minister wherein full judicial review is available. (iii) Orders like grant of pardon under Article 161 and the Orders passed by the President on the report submitted by the Governor under Article 356 on account of which limited judicial review is available and (iv) Where Governor acts - 17 - without aid and advice of the Council of Ministers headed by Chief Minister and acts in his own discretion. " 24. In the present case, according to the petitioners, the Governor has acted on the aid and advice of the Council of Ministers and therefore this case would be well within the sweep of category (ii) mentioned in para 27 Supra wherein full judicial review is available. In other words, in this case since the Governor has not acted in his sole discretion but based his judgment on the aid and advice of the Council of Ministers, his action is not immune from challenge in the Court. 25. The petitioners further contend that in view of the judgment of the Apex Court in the case of B.R. B.R. B.R. Kapur v. State of Tamil Nadu, Kapur v. State of Tamil Nadu, Kapur v. State of Tamil Nadu, 2001 Vol.7 SCC 231 the current view of the law is that if any action is taken by the Governor even in the matter of appointment of the Chief Minister, and if the action of the Governor is found to be contrary to the Constitution, the Court will have the power to strike it down. In their submission the action of the highest authority including the President of India; who is advised by his Council of Ministers is amenable to judicial review as was ruled by the Apex Court in the case of Kehar Singh v.Union of India, Kehar Singh v.Union of India, Kehar Singh v.Union of India, 1981 1 SCC 204. - 18 - 26. The petitioners, on the aforesaid legal foundation looking to the facts of the case on hand, contend that on 27.3.2002 the Cabinet met at 10.30 a.m. and decided to recommend to the Governor to immediately dissolve the State Legislative Assembly. In absence of any explanation for such immediate dissolution, it is logical to infer that it was required to be effected immediately to prevent the diminution in the strength of the party in power. 27. The petitioners further contend that under Articles 202 and 204 of the Constitution the Annual Financial Statement is required to be laid before the Assembly in respect of the financial year and a bill to provide for appropriation is required to be introduced. Rather than taking steps for passing the budget or a Vote on Account, the Assembly was dissolved with immediate effect. Any chance of voting in the Assembly was sought to be avoided due to apprehension that the Government would not be able to pass the resolution in which event it would amount to a vote of no confidence in the Government. Based on these factors, the contention advanced is that the only hidden reason for seeking dissolution of the Assembly was to avoid a test on the floor of the Assembly. The contention therefore, is that the dissolution ordered on 27.2.2002 was nothing but a blatant abuse of the power of the Governor under Article 174(2)(b) of the - 19 - Constitution. 28. The petitioners, further contend that the reasons sought to be given or the explanation sought to be offered in the affidavit of the respondents is patently false because, according to the Chief Minister (Respondent No.3) Government had the strongest majority of over 2/3rd of the Legislative Assembly; which could pass any legislation or policy it desired. No change of circumstances were pleaded or brought on record for seeking a fresh mandate. Therefore, in absence of any legitimate reason it is logical to conclude that