-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 37 OF 2008 1. Shri Bhagirath Pandharinath Gaonkar, major, r/o. Tarwada, Chopdem, Pernem, Goa. 2. Shri Mohan Gangaram Gaonkar, major, r/o. Tarwado, Chopdem, Pernem, Goa. 3. Shri Pilu Hari Gaonkar, major, r/o. Borvonwado, Camurlim, Bardez, Goa. 4. Shri Tulshidas Tukaram Gaonkar major, r/o. Tarwado, Revora, Bardez-Goa. 5. Shri Narayan Bhagwant Gaonkar, major, r/o Badem, Assagao, Bardez, Goa. 6. Shri Sunil Babli Gaonkar, major, r/o. Bondirwado, Shapora, Bardez, Goa. 7. Shri Prabhakar Tukaram Gaonkar, major, r/o. Temwado, Morjim, Bardez, Goa. 8. Shri Jallinder Namdev Gaonkar, major, r/o. Badem, Assagao, Bardez, Goa. ...... Petitioners V e r s u s 1. Shri Devi Bhumica Devasthan Chopdem, through the Managing Committee represented by attorney, Shri Vishnu Namdev Gaonkar, r/o. Borvonwado, Camurlim, Bardez, Goa. 2. Shri Narayan Surya Gaonkar, Bondirwada Chapora, Bardez-Goa. 3. Shri K. V. Talavnekar, of major age, UDC, -2- Office of the mamlatdar, Pernem-Goa. 4. Shri V. B. Sawant, major, Talathi, Office of the Mamlatdar, Pernem, Goa. 5. Administrator of Devalaya & Mamlatdar, Pernem Taluka, Pernem, Goa. 6. Sadanand Tukaram Gaonkar, major, r/o. Tarwado, Revora, Bardez, Goa. ...... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. S. Y. Thaly and Ms. S. Mordekar, Advocates for the Petitioners. Mr. M. S. Sonak, Advocate for the Respondent nos. 1 and 2. Mr. M. Salkar, Additional Government Advocate for Respondent nos. 3, 4 & 5. WRIT PETITION NO. 38 OF 2008 1. Shri Bhagirath Pandharinath Gaonkar, major, r/o. Tarwada, Chopdem, Pernem, Goa. 2. Shri Mohan Gangaram Gaonkar, major, r/o. Tarwado, Chopdem, Pernem, Goa. 3. Shri Pilu Hari Gaonkar, major, r/o. Borvonwado, Camurlim, Bardez, Goa. 4. Shri Tulshidas Tukaram Gaonkar major, r/o. Tarwado, Revora, Bardez-Goa. 5. Shri Narayan Bhagwant Gaonkar, major, r/o Badem, Assagao, Bardez, Goa. -3- 6. Shri Sunil Babli Gaonkar, major, r/o. Bondirwado, Shapora, Bardez, Goa. 7. Shri Prabhakar Tukaram Gaonkar, major, r/o. Temwado, Morjim, Bardez, Goa. 8. Shri Jallinder Namdev Gaonkar, major, r/o. Badem, Assagao, Bardez, Goa. ...... Petitioners V e r s u s 1. Manohar B. Gaonkar, 2. Vilesh Manohar Gaonkar, Both major of age, r/o. Tarwado, Revora, Bardez, Goa. 3. Rajendra P. Gaonkar, of major age, r/o. Tarwado, Colvale, Bardez, Goa. 4. Ramdas Gaonkar, of major age, r/o. Gudem, Sivolim, Bardez, Goa. 5. Anant N. Gaonkar, of major of age, r/o. Borvon wado, Camurlim, Bardez, Goa. 6. Vishnu S. Gaonkar, 7. Gangadhar P. Gaonkar, Both are of major age, r/o. Badem, Bardez, Goa. 8. Vishram R. Gaonkar, of major age, r/o. Tarwado, Chopdem, Bardez, Goa. 9. Shri K. V. Talavnekar, -4- of major age, UDC, Office of the mamlatdar, Pernem-Goa. 10. Shri V. B. Sawant, major, Talathi, Office of the Mamlatdar, Pernem, Goa. 11.The Administrator of Devalaya & Mamlatdar, Pernem Taluka, Pernem, Goa. 12. Sadanand Tukaram Gaonkar, major, r/o. Tarwado, Revora, Bardez, Goa. 13. Shri Devi Bhumica Devasthan, through its Managing Committee represented by its attorney, Having Office at Chopdem, Pernem, Goa. ...... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. S. Y. Thaly and Ms. S. Mordekar, Advocates for the Petitioners. Mr. V. A. Lawande, Advocate for Respondent nos. 1 to 4. Mr. Salkar, Additional Government Advocate for Respondent nos. 5 to 9. WRIT PETITION NO. 285 OF 2008 1. Shri Gokuldas Surya Gaonkar, s/o. Surya Gaonkar, of major age, Service, r/o. Bondirwado, Chapora, Bardez, Goa. 2. Shri Anta Namdev Gaonkar, s/o. Namdev Gaonkar, of major age, service, r/o. Borvonwado, Camurlim, Bardez, Goa. 3. Shri Purushottam C. Gaonkar, s/o. Chandrakant Gaonkar, of major age, -5- service, residing near Devi Bhumika Temple, Chopdem, Bardez, Goa. 4. Shri Dharma A. Gaonkar, s/o. Anant Gaonkar, of Major age, Service, r/o. Tar vado, Revora, Bardez, Goa. ...... Petitioners V e r s u s 1. The Administrator of Devalayas, Mamlatdar, Pernem Taluka, Pernem, Goa. 2. Shri Bhagirath Pandharinath Gaonkar, major, r/o. Tarwada, Chopdem, Pernem, Goa. 3. Shri Mohan Gangaram Gaonkar, major, r/o. Tarwado, Chopdem, Pernem, Goa. 4. Shri Pilu Hari Gaonkar, major, r/o. Borvonwado, Camurlim, Bardez, Goa. 5. Shri Tulshidas Tukaram Gaonkar major, r/o. Tarwado, Revora, Bardez-Goa. 6. Shri Narayan Bhagwant Gaonkar, major, r/o Badem, Assagao, Bardez, Goa. 7. Shri Sunil Babli Gaonkar, major, r/o. Bondirwado, Shapora, Bardez, Goa. 8. Shri Prabhakar Tukaram Gaonkar, major, r/o. Temwado, Morjim, Bardez, Goa. 9. Shri Jallinder Namdev Gaonkar, major, r/o. Badem, Assagao, Bardez, Goa. -6- 10. Sadanand Tukaram Gaonkar, major, r/o. Tarwado, Revora, Bardez, Goa. 11. Shri K. V. Talavnekar, of major age, UDC, Office of the mamlatdar, Pernem-Goa. 12. Shri V. B. Sawant, major, Talathi, Office of the Mamlatdar, Pernem, Goa. 13. Shri Narayan Surya Gaonkar, of major age, businessman r/o. Bondirwado, Chapora, Bardez, Goa. 14. Manohar B. Gaonkar 15. Vilesh Manohar Gaonkar, Both are major of age, r/o. Bondirwado, Revora, Bardez, Goa. 16. Rajendra V. Gaonkar, of major age, r/o. Tarwado, Colvale, Bardez, Goa. 17. Ramdas Gaonkar, of major age, r/o. Gudem, Sivolim, Bardez, Goa. 18. Anant N. Gaonkar, 19.Vishnu N. Gaonkar, both are of major age, r/o. Borvon wado, Camurlim, Bardez, Goa. 20. Vishnu S. Gaonkar 21.Gangadhar P. Gaonkar, Both are of major age, r/o. Badem, Bardez, Goa. -7- 22. Vishram R. Gaonkar, of major age, r/o. Tarwado, Chopdem, Bardez, Goa. 23. Shri Devi Bhumica Devasthan, Chopdem, Pernem, Goa. Through the Administrator of Devalaya Pernem, Taluka, Pernem, Goa. 24. State of Goa, through its Chief Secretary, Secretariat, Porvorim, Goa. ...... Respondents Mr. V. A. Lawande, Advocate for the Petitioners. Mr. M. Salkar, Additional Government Advocate for the Respondent no.1. APPEAL FROM ORDER NO. 98 OF 2007 WITH MCA NOS. 996 OF 2007 AND 161OF 2008 Shri Bhagirath Pandharinath Gaonkar, major, r/o. Chapora, Bardez, Goa. ...... Appellant (Original Intervener) V e r s u s 1. Shri Gokuldas Surya Gaonkar, of major age, Service, r/o. Bondirwado, Chapora, Bardez, Goa. 2. Shri Anta Namdev Gaonkar, of major age, service, r/o. Borvonwado, Camurlim, Bardez, Goa. 3. Shri Purushottam C. Gaonkar, of major age, service, residing near Devi Bhumika Temple, Chopdem, Bardez, Goa. 4. Shri Dharma A. Gaonkar, of Major age, -8- Service, r/o. Tarvado, Revora, Bardez, Goa. 5. The Mamlatdar and Administrator of Devalaya Pernem Taluka, Pernem, Goa. 6. Shri K. V. Talavnekar, of major age, UDC, Office of the mamlatdar, Pernem-Goa. 7. Shri V. B. Sawant, major, Talathi, Office of the Mamlatdar, Pernem, Goa. 8. The Collector of North Goa, Collectorate, Panaji, Goa. 9. The State of Goa, through Chief Secretary, New Secretarial Complex, Alto Porvorim, Bardez, Goa. ...... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. S. Y. Thaly and Ms. S. Mordekar, Advocates for the Petitioners. Mr. V. A. Lawande, Advocate for Respondent nos. 1 to 4. Mr. Salkar, Additional Government Advocate for Respondent nos. 5 to 9. CORAM: S. C. DHARMADHIKARI, J. DATE OF RESERVING : 05.09.2008 DATE OF PRONOUNCING : 26.09.2008 JUDGMENT Both sides agree before me that main arguments are being canvassed in Writ Petition no. 37/08 and, therefore, its disposal will cover the other matters. Even otherwise, main arguments being canvassed in Writ -9- Petition no. 37/08 and 38/08 they are taken up together and disposed off by a common Judgment. 2. Writ Petition no. 37/08 is directed against an Order passed by the Administrative Tribunal dated 10.01.08, passed in Devasthan Appeal nos. 2/07 and 6/07. The Tribunal has passed the following Order while allowing the appeals :- ORDER The Devasthan Appeals No. 2/2007 and 6/2007 are allowed to the extent that the election held on 11.2.2007 by the General Body of Shri Devi Bhumika Devasthan of Chopdem, for electing the Respondents No. 1 to 8 in Appeal No. 2/2007 and Respondents No. 4 to 11 in Appeal no. 6/2007 to Managing Committee of said Devasthan is hereby declared void and set aside. The prayer (b) of Appeal No. 6/2007 is rejected. The Respondent, Administrator of Devalayas of Pernem at Pernem, Goa, is directed to have fresh elections convened, preferably within three months from the date of service of this order, strictly following the procedure as laid under the “Devasthan Regulations”. The Administrator shall manage the affairs of Shri Devi Bhumika Devasthan of Chopdem, Pernem, Goa, till the new Managing Committee is elected. The Registry of this Tribunal shall serve a certified copy of the Judgment and Order on the Administrator at the earliest to enable it to take further action ion the matter and expedite the same.” -10- 3. Since pleadings are complete, there will be Rule in this Writ Petition. Mr. Sonak appears for respondent nos. 1 and 2 whereas Mr. Salkar appears for respondent nos. 3, 4 and 5. Respondent no.6 is duly served. By consent of Shri Lotlikar, Shri Sonak and Shri Salkar, the Petition is taken up for hearing and final disposal. The petitioners were impleaded as respondents in Devasthan Appeal no. 2/07 and 6/07. They were so impleaded because respondent nos. 1 and 2 in this Writ Petition challenged the election of the petitioners as Managing Committee Members. That election was held on 11.02.2007. 4. There is a Devasthan by name SHRI DEVI BHUMIKA DEVASTHAN at Chopdem, in Pernem Taluka. The said Devasthan comprises of three small temples, viz. Temple of SHRI DEU RAWALNATH, Temple of SHRI DEU VETHAL, and Temple of SHRI DEU KULSHIVAM. The Devasthan is existing for the last more than 300 years and is governed under the provisions of the Devasthan Regulation, namely 'Regulamento das Mazanias', as approved by the Diploma Legislative No. 645 dated 30.03.1933 and amended by Diploma Legislative No. 1898 dated 29.05.1959. Bye-Laws of the said Devasthan, were approved by the then Governor General vide Order dated 26.2.1909. 5. Election Appeal no. 2/07 was filed on 16.02.2007. A copy of the Election Appeal is annexed to the present petition. The original appellants are respondent nos. 1 and 2 to this Writ Petition. They alleged that a letter dated -11- 24.01.06 was received from the Administrator of Devalaya (Mamlatdar of Pernem, Goa), advising the Devalaya to conduct election of the new Managing Committee on 11.02.2007 post wise as per the Judgment and Order passed by this Court in Writ Petition no. 514/04 and 515/04. Pursuant to this letter of advise, the Devasthan issued a public notice dated 09.02.07 calling for a General Body meeting on 25.02.07 for holding election of the Managing Committee for the triennium 2007-2010. It is alleged that this notice apart from being displayed on the notice board/front doors of the temples, has also been published in prominent dailies having wide circulation. It is alleged that the Devasthan has its Mahajans spread all over the State of Goa. 6. It is alleged that respondent no.2, Narayan, appellant no.2, is the President (substitute) of the Devasthan and he is functioning on account of the absence of the President Shri Gopal Gaonkar. Gopal Gaonkar was absent due to frequent sickness. Since 10.02.07, Narayan is holding charge of the post of President. It is alleged that on 11.02.2007 at about 10.30 to 11.00 a.m., when he was at his residence, he received a telephonic message from one of the Mahajan residing at Chopdem that a group of 30 to 40 persons including the petitioner have gathered in the premises of the temple of Shree Dev Vetal at Chopdem without any notice. It was informed that these petitioners were holding meetings with regard to the election of the Managing Committee. On receiving the message, Narayan immediately came to the temple where he saw to his surprise that the present petitioners were discussing the matter of election of the Managing Committee and that -12- respondent nos. 10 and 11 to the Election Appeal, who are the Upper Division Clerk and Talathi, working in the Office of the Mamlatdar, were advising them that the number of people gathered are sufficient Quorum for extraordinary General Body meeting to conduct election. On this advise, the said group self-styling itself as “the General Body”of the Devasthan announced that they are holding an election of the Managing Committee. At that point of time, Narayan invited attention of those persons present to the notice issued convening the meeting of General Body on 25.02.07. However, the respondent nos. 10 and 11 to the appeal, who are employees in the Mamlatdar's Office, informed the said Narayan that after having accepted the letter dated 11.02.07, the Administrator has given oral instructions to proceed with the meeting. The meeting thereafter proceeded and some other Mahajans who were interested in contesting the elections were not allowed to participate in the election process. The appellants in the Appeals requested the Upper Division Clerk to furnish a copy of the report but they were not told that the report was not ready and they should approach the Office and collect it on 11.02.07. Thereafter, on 13.02.07, the appellants were furnished with the copy of the minutes of the meeting dated 11.02.07 and the report by the Office of the Administrator of Devalaya. It is from these documents that the appellants became aware that the extraordinary General Body meeting was held and presided over by Sadanand T. Gaonkar (Respondent no.6 in Writ Petition No.37/2008) and petitioners were purportedly elected as Managing Committee Members. -13- 7. In this Election Appeal, this decision and the report has been challenged on various grounds. 8. Thereafter, it was prayed that the Judgment be set aside and during the pendency of the appeal, the Administrator should not give recognition to the proceedings of the purported meeting of the General Body. 9. Upon the petitioners being served with the papers and proceedings, they filed their reply to the appeal and pointed out that the preliminary objections raised would show that the appeal is not maintainable. Further it was pointed out that the appellants to the election appeal have suppressed and not disclosed that circulars were issued on 02.01.07, 04.01.07 and 17.01.07 by the Administrator. Thus, prior to the public notice allegedly issued on 09.02.07 by the said Narayan, there were already communications and notices from the Administrator that the election should be convened for the triennium. 10. The Petitioners denied that any public notice was issued or published in prominent dailies. Further, they pointed out that under Article 40 of the Devasthan Regulations, elections have to be held to elect a new Managing Committee every three years on second Sunday of February for the period of next three years and, therefore, for the above triennium, the date of holding elections was 11.02.07, which was known to all concerned. In such circumstances, the notice allegedly issued is without any legal efficacy. The -14- attention of the Tribunal was invited to the Order passed by this Court on 03.02.06 in Writ Petition no. 168/00. Further, attention was invited to the Circular of the Administrator dated 17.01.07. Attention was also invited to the Order dated 30.01.07 directing the President of the Managing Committee to hold elections by including names of all 79 members. In such circumstances, and when the Tribunal vacated the Exparte Order granted by it on 09.02.2007, the contention raised was that the appeal is without any substance and should be dismissed. Further, para wise denials were also furnished. The written statement is dated 02.05.2007. As far as Writ Petition no. 38/08 is concerned, there the petitioners have prayed that the same Order of the Tribunal be quashed and set aside. However, there were separate Appeals before the Tribunal. Writ Petition no. 38/08 involves Devasthan Appeal no. 6/07, which was filed by respondent nos. 1 to 8 in that Petition. 11. The allegations in Appeal no. 6/07 are that the respondent no.13 to that Appeal is the Devasthan and a public notice was issued on 09.02.07 calling General Body meeting on 25.02.07 of the Managing Committee for the triennium. It was alleged that on 11.02.07 at about 9.30 a.m. to 10.00 a.m., appellant nos. 1 and 7 went to the temple in connection with some Puja. They saw group of 30 persons including respondent nos. 4 to 12 to the said appeal entering the temple and discussing about conducting elections. Thereafter, the Vice President was informed telephonically about the events of the temple. Vice President arrived in the temple and objected to the meeting. Thereafter, the Vice President pointed out that the Management has not convened the -15- General Body meeting but it is convened on 25.02.07 and gave a letter to the respondent no.3 to the said appeal containing this information. However, he received oral instructions to proceed with the meeting and, therefore, the meeting proceeded. The Vice President informed the appellants that he is helpless and, in such circumstances, the appellants handed over letter dated 11.02.07 informing the Talathi and UDC that they be allowed to contest the election, if the respondent nos. 1 and 2 desired to go ahead with the meeting. The respondent nos. 1 and 2 although received this letter, refused to allow appellants in the appeal to contest the election so also they did not permit them to cast their votes. It is in such circumstances, respondent no.3 served a copy of a letter dated 13.02.07 informing the appellant no.8 that the request could not be considered because the election was fixed on that very day. That is how the appeal was filed challenging the decision dated 11.02.07 and elections of the petitioners in Writ Petition no. 37/08 who are impleaded as respondents in Writ Petition no. 38/08. 12. Upon being served with the papers and proceedings, the contesting respondents to Appeal no. 6/07 (petitioners in Writ Petition no. 38/08), filed their written statement and after denying all the facts, more or less reiterated their stand as noticed above. 13. The two Election Appeals thereafter were placed by the Tribunal for hearing and disposal before it and after hearing Advocates and perusing the documents on record, the above re-produced Order of the Tribunal has -16- been passed. 14. It is this Order which is assailed and challenged in Writ Petition no. 37/08 and 38/08. Hence, Rule in both matters. Heard forthwith by consent. All present waive notice. 15. Appeal From Order no. 98/07 is directed against a Order passed by the District Judge-II, Panaji, in Civil Suit no. 28/07. By this Order delivered on 06.09.07, the learned Additional District Judge held that all that the applicants, original plaintiffs, are entitled to is a relief that pending adjudication of the election dispute before the Tribunal, the Mamlatdar and Administrator of Devalaya should not give effect to the letter dated 13.06.07. The letter dated 13.06.07 is an intimation to the plaintiffs in the said suit to hand over charge to the newly elected members of the Managing Committee in pursuance of the elections held on 11.02.07 for the triennium 2007-2010. 16. It is common ground that the outcome of this Appeal from Order would depend upon the petitioners' challenge to the Order of the Tribunal and, if petitioners succeed in their challenge, then, the letter dated 13.06.07 can take effect or else, the same will have no legal effect in the light of the impugned Order of the Tribunal. All that the learned District Judge has done is to direct that this letter will not take effect until the Administrative Tribunal decides the Election Appeals. -17- 17. Writ Petition no. 285/08 is directed against that part of the Order of the Tribunal which is impugned in Writ Petition no. 37/08 and 38/08, by which, the Administrator was directed by the Tribunal to hold fresh elections of the Devasthan. The petitioners pray that the Management of the Devasthan be restored to the petitioners in Writ Petition no. 285/08. Once they are parties to other Petition and common arguments are canvassed, both sides agree that the outcome of this Petition would also depend upon the view taken by me on the issue of legality and validity of the Tribunal's Order dated 10.01.08. 18. Mr. Lotlikar, learned Senior Counsel appearing in support of Writ Petition nos. 37/08 and 38/08, contended before me, that the remedy of a Election Petition is a special remedy. It is not an ordinary remedy. There has to be specific pleading challenging the validity and legality of the elections and electoral process. There have to be clear allegations of breach and violations of the rules which permit elections to be held and of irregularity or illegality in the entire process. Such allegations have to be affirmed on oath by the persons making them. Assuming that they do not do so, yet, they must file affidavits reiterating the said allegations and producing material to substantiate the same. In the present case, there is no proof of the allegations levelled in the Election Appeals. There is no evidence led in the Election Appeals. In such circumstances, the Tribunal erred in allowing the Election Appeals. Its Order is ex-facie bad in law, untenable and deserves to be quashed and set aside. He submits that mere irregularity would not vitiate the -18- result of an election. The irregularity alleged must touch the very root of the matter. Merely because it is alleged that no notice is issued of the election meeting, is by itself not enough to set aside the election. There is no pleading that because there was lack of notice, the right to participate in the electoral process is lost. 19. Mr. Lotlikar submits that apart from the above, if, one peruses ground no.3 at page 143 of the paper book in Writ Petition no. 37/08, it would be apparent that 'no case' has been made out to challenge the elections. Minutes of the election meeting are very much available. All findings in that regard are in favour of the petitioners and yet their election is set aside. That minutes of the meeting are not signed by the Secretary cannot be a ground enough to set aside the election. Moreso, when genuineness and authenticity of the minutes has not been challenged, there is no pleading or allegation that minutes do not reflect that any elections were held. Such being the case and the minutes evidencing the electoral process having been undertaken and completed so also demonstrate complete compliance with Rules, the elections could not have been set aside. 20. Mr. Lotlikar, invited my attention to the Devasthan Regulations. He invites my attention to the fact that the issue of inclusion of 79 members in the list of Mahajans has gained finality. Mr. Lotlikar has invited my attention to the Order passed by this Court on 03.02.06 in Writ Petition no. 168/01 so also the Order passed by this Court in Writ Petition no. 364/00 in support of his -19- contentions. 21. On the other hand, Shri Sonak, appearing in Writ Petition no. 37/08 for respondent nos. 1 and 2, supported the Order of the Tribunal. He submits that for any valid electoral process, there must be a voter's list. Such voter's list must be prepared before hand and if there is a valid voter's list, then only the electoral process can be initiated and completed. There is no voter's list as per the Regulations. In such circumstances, this Court should not interfere with the Order of the Tribunal in its extraordinary, equitable and discretionary jurisdiction under Article 226/227 of the Constitution of India. This is not a Court of Appeal and all findings or facts are binding upon it. For these reasons, he submits that the Petition be dismissed. 22. Mr. Lawande has addressed me on behalf of the respondent nos. 1 to 4 in Writ Petition no. 38/08 and on behalf of petitioners in Writ Petition no. 285/08. Briefly, his submissions are that the Petition is filed under Articles 226 and 227 of the Constitution of India. The same is filed challenging a finding of fact. No interference is permissible in writ jurisdiction with such findings of fact unless they are demonstrated to be perverse. He submits that the time within which election had to be held is not mandatory. Mr. Lawande has invited my attention to the Devasthan Regulations and more particularly Article 23, 26, 30 (5 and 6), 36, 44 and 45. He submits that there is no catalogue which is maintained. There is no list of voters.