1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 224/2011 Mr. Mansoor Mulla, r/o. Flat No.G-1, Usmania Enclave, Nagamasjid, Curti, Ponda, Goa. ......... Petitioner. V/s. 1. State of Goa by the Secretariat (Panchayat), Government of Goa, Secretariat, Porvorim, Bardez, Goa. 2. Mr. Mulla Hussain Muzawar, son of Mulla Mohamad Muzawar, r/o. Flat No.G-4, Usmania Enclave, Nagamasjid, Curti, Ponda, Goa. 3. Village Panchayat of Curti, Khandepar, by its Secretary, Curti, Ponda, Goa. …..... Respondents. Mr. A. F. Diniz, Advocate for the Petitioner. Mr. M. Salkar, Government Advocate for respondent No.1. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for respondent No. 2. CORAM :- A.P. LAVANDE & R.P. SONDURBALDOTA, JJ. Date of reserving Judgment : 08/09/2011. Date of pronouncing Judgment : 22/09/2011 2 J U D G M E N T : (Per A.P. LAVANDE, J.) Heard learned Counsel for the parties. 2. The parties were put to notice that the petition would be disposed of finally at the admission stage. Hence Rule. Rule is made returnable forthwith. 3. By this writ petition, the petitioner seeks the following reliefs: “(a) For a declaration that the seat of the respondent no.2 as member (panch) of the Village Panchayat of Curti Khandepar has become vacant. (b) For a writ of quo warranto or a writ in the nature of quo warranto, or any other appropriate writ direction or order under Article 226 of the Constitution of India calling upon the respondents to explain under what law the respondent no.2 continues to be a member of the Village Panchayat of Curti Khandepar and on considering the same declaring the respondent no.2 an usurper in office as member of the Village Panchayat of Curti-Khandepar, and to forthwith vacate the same. 3 (c) For a writ of mandamus or a writ in the nature of a mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India commanding the Respondent no.2 to forbear from functioning or acting as a member (panch) of the Village Panchayat of Curti-Khandepar in any manner whatsoever and further directing the Respondent no.3 to forthwith revoke, and cancel the Construction Licence bearing No.41/09-10 dated 14/11/09. (d) Pending the hearing and final disposal of the Petition therefore, this Hon'ble Court should be pleased to restrain the respondent no.2 from functioning or acting as member (panch) of the Village Panchayat of Curti-Khandepar, or taking part or voting at a meeting of the Village Panchayat of Curti-Khandepar. (e) For ex-parte ad interim reliefs in terms of prayer (d) above; (f) For costs; and (g) For such further and other reliefs as the nature and circumstances of the case may require.” 4 4. The petitioner claims to be a citizen of India and permanent resident of Curti, Ponda, Goa and that he is a voter from Ward No.9 of the Village Panchayat of Curti-Khandepar, Goa. Respondent No.2 was elected as a Member of the Village Panchayat from Ward No.9. For sometime, respondent No.2 was the Chairman (Sarpanch) of the Panchayat and he continues to be a Member of the Panchayat. 5. It is the case of the Petitioner that by Resolution No. 2/6 taken at the meeting of the Panchayat held on 29th May, 2009, the Panchayat resolved to issue a construction licence to respondent No.2 as per the plan (as revised) for construction of a residential building in Survey No.59/0 at Khandepar Village. The said meeting was presided over by respondent No.2 who took part in the discussion and also proposed the grant of the said licence although he had direct and pecuniary interest therein. The resolution was unanimous and respondent No. 2 also voted for the said resolution. Pursuant to the said resolution, construction licence No. 41/09-10 dated 4.11.2009 was issued to respondent No.2. A copy of the said construction licence (Annexure P3) has been produced by the petitioner. It is further case of 5 the petitioner that respondent No. 2 entered into a development agreement dated 5.3.2009, with a builder to develop the plot in the said property for which the construction licence was issued. The Petitioner has placed on record copies of the development agreement along with corrigendum and the Panchayat letter dated 5.5.2010, Form I and XIV, and House Tax Receipt, etc. ( Annexure P4 Colly). According to the Petitioner, respondent no. 2 stands disqualified, on account of his act of taking part in the discussion, proposing the said resolution and voting for the same. It is further the case of the petitioner that the seat of respondent No. 2 in the Panchayat is deemed to have become vacant in terms of Section 12(1) (d), read with Section 55(4) of the Goa Panchayat Raj Act, 1994 ( “the Act” for short). 6. Respondent No. 2 filed an affidavit-in-reply dated 18th July, 2011, inter alia, contending that the Petitioner has produced before the Court a truncated and incorrect copy of the minutes of the meeting of the Village Panchayat held on 29th May, 2009. In para 4, respondent No. 2 admitted that he presided over the meeting of the Panchayat held on 29th May, 2009, being the Sarpanch thereof, but contended that there was neither voting, nor discussion in respect of 6 any of the subjects dealt with by the Panchayat Body in the said meeting. It is further the case of the respondent No. 2 that construction licences were issued in view of the fact that the plans were approved by the Town and Country Planning Department and the Technical Officer- Cum-Assistant Engineer of Public Works Department and there was no discretion left in the Panchayat to refuse the construction licences, after the said plans were approved. Therefore, there was no question of voting in connection with the grant of construction licences after the NOCs were granted. He denied that he had voted at any time for the resolutions in the meeting held on 29th May, 2009, nor did he propose any of the resolutions passed on the said date. Respondent No. 2 has contended that the Petitioner is guilty of gross laches in approaching the Court since the Writ Petition was filed on 11th April, 2011. In para 9 of the same affidavit, respondent No. 2 has contended that the minutes of the meeting held on 29th May, 2009 do not reflect the correct position and he did not even recollect as to whether he presided over the meeting, since a lot of time has passed since the meeting was held. Respondent No. 2 further stated that he faintly recollected of having presided over the said meeting. But according to respondent No. 2, the same was inconsequential. It is further the case of respondent No. 2 7 that his presence at the relevant time was inconsequential since he did not participate in the discussion relating to grant of licence, nor did he vote. 7. Thereafter, the Petitioner filed an affidavit-in-rejoinder dated 25th July, 2011 reiterating the statements made in the petition and controverting the statements made in the affidavit-in-reply filed by respondent No.2. Along with the affidavit-in-rejoinder, the Petitioner produced the minutes of the meeting of the Panchayat held on 29th May, 2009, as well as the minutes of the meeting held on 16th June, 2009, which according to the Petitioner, disclose that respondent No. 2 had participated in the meeting held on 25th May, 2009 and the minutes of the meeting held on 29th May, 2009 were read and confirmed in the meeting held on 16th June, 2009. 8. Thereafter, respondent No. 2 filed an affidavit-in-sur- rejoinder dated 16th August, 2011 denying that he was a party to the meeting dated 16th June, 2009 or that he proposed the resolution in confirmation of the minutes of the meeting held on 29th May, 2009. It is further the case of respondent No. 2 that the minutes have been 8 written erratically by the Secretary, without regard to the factual situation and the same have not been written in accordance with the rules pertaining to the conduct of the meeting and writing of the minutes. He has reiterated the stand taken in his affidavit-in-reply. 9. Mr. Diniz, placing reliance upon Section 12(1) (d) and Section 55(4) of the Act, submitted that the materials placed on record by the Petitioner clearly disclose that respondent No. 2 presided over the meeting dated 29th May, 2009 in which he proposed the approval of the construction plans, which was seconded by another Panch Narayan Naik. According to Mr. Diniz, the construction licence in respect of respondent No.2's property was also approved in the said meeting and therefore, Section 55(4) of the Act is clearly attracted. According to the learned Counsel, the minutes of the meeting held on 29th May, 2009 and 16th June, 2009 of the Village Panchayat of Curti-Khandepar clearly disclose that the decision in respect of respondent No.2's licence was taken in the meeting dated 29th May, 2009, which meeting was presided over by respondent No.2 himself and that the decisions taken in the said meeting were unanimously confirmed by the members present (including respondent No.2) in the meeting dated 16th June, 9 2009. According to Mr. Diniz, the grant of construction licence is not automatic, as is evident from The Goa, Daman and Diu Village Panchayats (Regulation of Buildings) Rules, 1971 and more particularly Rules 13, 22, 29 and 33. According to Mr. Diniz, the Panchayat itself had not granted construction licences to several persons even after the plans were approved by the Town and Country Planning Department and the Technical Officer, and, as such, the contention of respondent No. 2 that the grant of construction licence, after NOCs are granted by the Town and Country Planning Department and the Technical Officer is a mere formality, is unsustainable in law. According to the learned Counsel the very fact that the construction plans were approved in the meeting dated 29th May, 2009 discloses that the Members present had voted inasmuch as the minutes of the meeting dated 29th May, 2009 do not disclose that respondent No. 2 abstained from voting at the time of consideration of approval to the construction plans submitted by him. 10. In support of his submissions, Mr. Diniz has relied upon the following judgments:- (1) Agnello Caridade Lobo Vs. Sanjay A. Pednekar and 10 ors, reported in 2009(5) Bom. C. R. 62, (2)The Akhada St. Estevam Village Development and Protection Samittee and others Vs. Smt. Seema Rohidas Narvekar and others, reported in [2010(2) Goa L. R. 109]; (3) Lenocio John Raicar vs. Martinho Francisco Rocha and ors., reported in 2010 (5) Bom.C.R. 303; (4) Unreported Judgment in the case of Shri Jagdish Bhobe vs. State of Goa and others, dated 16.8.2010 of this Court in Writ Petition No.295 of 2010; (5) Unreported Judgment in the case of Mohan Vithal Dabhale vs. Santosh V. Morajkar and others, dated 3rd May, 2011 of this Court in Writ Petition No.323 of 2010. 11. Per contra, Mr. Lotlikar, learned Senior Counsel appearing for respondent No.2 submitted that the petition is liable to be dismissed inasmuch as there are serious disputed questions of facts which cannot be decided in the writ petition. He submitted that the appropriate remedy for the Petitioner would be to file a civil suit. The learned Counsel further submitted that the Petitioner is guilty of unexplained delay and laches, inasmuch as the writ petition has been filed on 11th April, 2011 after a period of almost two years. The learned Counsel further submitted that the Petitioner has failed to make out a strong case for disqualification of respondent No.2 and, in any event, if the 11 relief is granted, the State Government will have to hold fresh elections which will put burden on the State exchequer. According to the learned Counsel, the provisions of the Act dealing with disqualifications have to be strictly construed. The learned Counsel reiterated the stand taken by respondent No.2 in his affidavits that the grant of construction licence after the plans are approved by the Town and Country Planning Department and the Technical Officer is a mere formality and there is no question of either voting or taking part in the discussion regarding the grant of licence. The learned Counsel submitted that the minutes of the meeting held on 29th May, and 16th June, 2009 have not been drawn in accordance with the provisions of the Act and more particularly Section 57 of the Act and the minutes produced by the Petitioner do not disclose that they were signed by the Members present, including respondent No.2. According to the learned Counsel, the petition has been filed by the Petitioner to reek vengeance, since the Petitioner has family dispute with respondent No.2. According to the learned Counsel, the minutes of the meetings do not disclose that the meetings dated 29th May, and 16th June, 2009 were presided over by respondent No.2 and in the absence of signatures of the members present at the end of the minutes, it cannot 12 be said that the decisions taken in the said meetings were taken by the Members present after deliberations. According to the learned Advocate, respondent No.2 cannot be expected to remember as to what happened in the meeting dated 29th May, 2009 and the delay in filing the writ petition has caused serious prejudice to respondent No.2. The learned Counsel further urged that perusal of the minutes discloses that in respect of some other subject-matters, there was neither any proposer nor seconder, which establishes that the minutes were not written in accordance with the provisions of the Act. Learned Counsel further urged that there must be discussion and/or voting on the subjects which came up before the Panchayat and the minutes of the meetings relied upon by the Petitioner do not establish that there was any discussion and/or voting on the subjects which came up for consideration in the two meetings. According to the learned Counsel, respondent No.2 having disputed the correctness of the minutes, it is for the Petitioner to establish by cogent evidence that the minutes have been correctly written by leading cogent evidence which can be done before a Civil Court. According to the learned Counsel, no presumption arises about the correctness of the minutes of meeting which have been written by the Secretary of the Panchayat. According 13 to the learned Counsel, from a harmonious reading of Section 12(1)(d) and Section 55(4), it is evident that the Sarpanch of a Panchayat is not disqualified on the ground that he has presided over a meeting, since in terms of Section 12(1)(d) disqualification of a Member of a Panchayat is on the ground that he votes or takes part in discussion in contravention of the provisions of sub-Section (4) of Section 55 of the Act. Mr. Lotlikar, therefore, submitted that no case has been made out for exercise of writ jurisdiction by this Court and, as such, the petition is liable to be dismissed. 12. Mr. Salkar, learned Government Advocate appearing for respondent No.1 submitted that mere pecuniary interest of a Member of a Panchayat does not disqualify him if he votes or takes part in the discussion of any question which comes up for consideration and a member would stand disqualified only if the public interest suffers, as is evident from the plain read of sub-Section (4) of Section 55 of the Act. According to Mr. Salkar, a Member of a Panchayat stands disqualified if he votes or takes part in discussion in a matter like tender in which the member has pecuniary interest, since in such an event public interest is bound to suffer on account of pecuniary 14 interest of the member. 13. We have carefully considered the rival submissions, perused the record, the relevant provisions of the Act and the Regulations and the Judgments relied upon. 14. In view of the rival contentions, the following points arise for determination in this writ petition : (i) Whether the writ petition is liable to be dismissed on the ground that the writ petition involves disputed questions of facts and/or on the ground of laches ? (ii) Whether respondent No.2 voted and/or took part in the discussion in the meeting dated 29th May, 2009 in which construction licence/permission was granted to respondent No.2 ? (iii) Whether the petitioner is entitled to a declaration that the seat of respondent No.2 as a member (Panch) of the Village Panchayat of Curti-Khandepar has become vacant ? 15. In so far as the submission of Mr. Lotlikar that the writ petition is liable to be dismissed on the ground of laches and/or on the ground that the same involves disputed questions of facts is 15 concerned, we find absolutely no merit therein. The meeting in which respondent No.2 participated was held on 29th May, 2009 and the present writ petition has been filed on 11th April, 2011. Therefore, it cannot be said that the Petitioner is guilty of such laches as would then disentitle him from seeking any relief under Article 226 of the Constitution of India. Moreover, the alleged delay has not caused any prejudice to respondent No.2 and, therefore, we are not inclined to dismiss the writ petition on the ground of unexplained delay and laches on the part of the Petitioner. In so far as the submission regarding the question of serious disputed questions of facts is concerned, we also do not find any merit inasmuch as there is sufficient material on record to record a finding on the aspect of the disqualification of respondent No.2 and having regard to the pleadings of the parties, it is difficult to accept the contention of Shri Lotlikar that there are serious disputed questions of facts which require adjudication only after the parties lead evidence. Moreover, the term of the Panchayat is to expire in May, 2012 and, therefore, at this stage, it would not be just and proper to relegate the Petitioner to the remedy of a civil suit, thereby rendering the remedy of challenging the disqualification of respondent No. 2 otiose. We, 16 therefore, hold that the petition is not liable to be dismissed either on the ground of delay and laches, or on the ground that the same involves disputed questions of facts. 16. Therefore, the question which arises for consideration is, whether respondent No.2 stands disqualified for having voted and/or for having taken part in the discussion held in the meeting dated 29th May, 2009 ? There is no serious dispute that in the said meeting one of the items on the agenda was to approve the construction plans, and that the construction plans submitted by respondent No.2 himself came up for consideration in that meeting and were approved. As stated above, respondent No.2, in his affidavit filed initially, admitted that he had presided over the meeting, but, just thereafter, stated that he did not remember whether he presided over the meeting or not. We fail to understand as to how such a stand could have been taken by respondent No.2 inasmuch as, under the Act, in terms of sub-Section (2) of Section 55 of the Act, it is the Sarpanch, if present, who has to preside over the meeting. Respondent No.2 has not disputed that he was present in the meeting on 29th May, 2009. Perusal of the minutes of the meeting dated 29th May, 2009 discloses that respondent No.2 who was 17 Sarpanch at the relevant time, was present in the meeting. No doubt, there are no signatures of the Members present at the end of the minutes of the meeting. However, perusal of the copy of the minutes of the meeting held on 16th June, 2009 makes it clear that the proceedings of the meeting held on 29th May, 2009 were read over and confirmed. There is no serious dispute that respondent No.2 was also present in the said meeting. Therefore, it is established that respondent No.2 presided over the meetings of the Panchayat on 29th May and 16th June, 2009. 17. The reliance placed by Mr. Lotlikar on Section 57 of the Act in support of his argument that the minutes are not written in accordance with the said provision, is totally misplaced. Section 57 of the Act reads thus : “ 57. Minutes.— (1) Minutes shall be kept of the names of the members and of the officers, if any present, and of the proceedings at each meeting of the Panchayat and if any members present at the meeting so desires, of the names of the members voting respectively for or against any resolution, in a book to be provided for the 18 purpose and after they are read over and agreed to shall be signed by the Sarpanch or Deputy Sarpanch or person presiding at such meeting and shall at all reasonable times be open to inspection by any member of the Panchayat. Any person may inspect the copy of the minutes of the meeting. The minutes book shall always be kept in the office of the Panchayat and shall be in the custody of the Secretary of the Panchayat. (2) A copy of the minutes of every meeting of Panchayat shall within ten days from the date of the meeting, be forwarded by the Secretary to the [Block Development Officer.]” From a bare perusal of Section 57, it is clear that the minutes should disclose the names of the members and the officers present and the proceedings taken at the meeting and if the members present desire, the names of the members voting for or against any resolution, in a book to be provided for the purpose and after they are read over and agreed shall be signed by the Sarpanch or the Deputy Sarpanch or the person presiding at such meeting and the same shall be open to inspection by any member of the Panchayat. It also provides that any 19 person may inspect the copy of the minutes of the meeting and the minute book shall be always kept in the office of the Panchayat in the custody of the Secretary of the Panchayat. Sub-Section (2) mandates that a copy of the minutes of every meeting shall be sent, within 10 days of the meeting, by the Secretary to the Block Development Officer. Thus, the minutes are to be signed by the Sarpanch, the Deputy Sarpanch or any person presiding at such meeting. We, therefore, fail to understand as to how respondent No.2 who, at the relevant time, was the Sarpanch could now contend that the minutes were not written in accordance with the provisions of the Act. It is also pertinent to note that Section 64(c) of the Act mandates the Sarpanch of the Panchayat to exercise supervision and control over the acts of the officers and employees of the Panchayat. Therefore, to accept the argument made on behalf of respondent No.2 that the minutes were not kept in accordance with the provisions of the Act would be allowing respondent No.2 to take advantage of his inaction. 18. In our considered opinion, the minutes of the meetings held on 29th May, 2009 and 16th June, 2009 are in substantial compliance of the provisions of the Act, although the same have not 20 been signed at the end of the minutes separately by respondent No.2 who was at the relevant time the Sarpanch of the Village Panchayat. Merely because respondent No.2 did not sign the minutes of the meetings held on 29th May, and 16th June, 2009, we find it difficult to accept the submission of Mr. Lotlikar that these minutes cannot be relied upon for the purpose of finding out as to whether respondent No.2 had taken part in the discussion or voted in the meeting held on 29th May, 2009. From the fact that respondent No.2 was present in the meetings dated 29th May, and 16th June, 2009, it follows that respondent No.2 presided over both these meetings and voted. 19. Perusal of the minutes of the meetings dated 29th May,