- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 323 OF 2010. Mr. Mohan Vithal Dabhale, aged 42 years, H. No.5, Verla Canca, Bardez - Goa. ........ Petitioner. Versus 1 Mr. Santosh Vasant Morajkar, Major in age, r/o. H. No. 289, Sonarvada, Verla Canca, Bardez Goa. 2 Village Panchayat Verla Canca, through its Sarpanch & Secretary, Verla Canca, Bardez-Goa. 3 Director of Panchayat, Junta House, Panaji Goa. 4 State of Goa, Through its Chief Secretary, Secretariat, Porvorim-Goa 5 Goa State Election Commission, Junta House, Panaji-Goa. 6 Block Development Officer, Bardez Taluka, Mapusa, Goa. 7 Mr. Kishor Pagi, Major in age, former Secretary, of - 2 - Village Panchayat Verla Canca, presently working as Secretary, in the ofice of Block Development Officer, Bardez Goa. ........ Respondents. Mr. N. Sardessai, Advocate for the Petitioner. Mr. D. Pangam, Advocate for the Respondent no.1. Mr. J. A. Lobo, Advocate for Respondent nos. 2 and 7. Mr. A. D. Salkar, Government Advocate for Respondent no.3, 4 and 6. Coram:- S. C. DHARMADHIKARI, J. F. M. REISM, J. Reserved on : 25th April, 2011. Pronounced on: 3rd May, 2011. JUDGMENT( Per S. C. Dharmadhikari, J ) By this petition under Article 226 of the Constitution of India, the Petitioner seeks a declaration that Respondent no.1 is disqualified as member of Village Panchayat Verla Canca, Bardez Taluka and that seat has therefore become vacant. 2. As a consequence of the above relief, it is prayed that - 3 - Respondent nos. 3 to 6 should hold election to fill up the vacant seat from ward no. 5 of the said Panchayat. 3. The case of the Petitioner is that he is residing in the said village and he is voter at the Panchayat election of the Village Panchayat, which is impleaded as Respondent no.2. Respondent no.1 also resides in the village Verla-Canca and he is a member of Village Panchayat. The other respondents are the Authorities incharge of implementation of the provisions of Goa Panchayat Raj Act, 1994. It is stated that Respondent no.1 was elected from ward no. 5 in the election of the Panchayat in May, 2007. The Petitioner also contested the election. Respondent no.1 is elected as Panchayat member for a period of 5 years. 4. It is the case of the Petitioner that the first Respondent stands disqualified on account of his conduct in supporting his wife in obtaining a No Objection Certificate from the Village Panchayat. His wife Smt. Sweta Morajkar does not have any independent source of income. Respondent no. 1 and his wife are residing in house no. 289, Sonarvada, Verla Canca, - 4 - Bardez Goa. Respondent no.1 has pecuniary interest in her transaction in as much as he does not deal in his own name but in the name of his wife. On 27.12.2007 Smt. Sweta Morajkar made an application to the Panchayat and requested the Sarpanch/Secretary to issue No Objection Certificate( NOC) to start a business of hotel/restaurant in the name and style of “Sai Satwa” on plot bearing survey no. 12/22 situated at Verla Canca Bardez, Goa. It is further alleged that Smt. Sweta Morajkar is not the owner of this plot and has not submitted the requisite documents. It is alleged that on 28.12.2007 the second fortnightly meeting of the Village Panchayat of the Verla was held in the office of Village Panchayat. The agenda dated 20.12.2007 was taken up for discussion. As per the minutes of the meeting, which started at 10.30a.m, Shri Laxmikant Bicholkar was in the chair in the absence of Sarpanch. In this meeting agenda item no. 5(3) was taken up for discussion in which Respondent no. 1 participated. This subject was taken up with the permission of the chair. The subject was grant of NOC to the wife of Respondent no.1 in pursuance of her application. The Panchayat decided to issue NOC to her. Relying upon the - 5 - minutes, it is contended that the proceeding records that Shri Santosh Vasant Morajkar ( Respondent no.1) was present at the said meeting and he signed the proceeding sheet. It is alleged that though the proceedings wrongly record the name of seconder as Santsoh Bhaidkar, later on Secretary of the Panchayat has stated before the Director of Panchayat that it was a mistake and name of Santosh Bhaidkar is written instead of Santosh Morajkar ( Respondent no.1). It was certified that the Panchayat had no objection to Respondent no.1's wife starting the business of Hotel/Restaurant in the name and style “Sai Satwa” in the premises. In such circumstances Respondent no.1 being husband of Smt. Sweta Santosh Morajkar had pecuniary interest in the question concerning resolution no. 5(3). In paras 14 and 15 of the petition, this is what is alleged:- Para 14:- “This is a conflict between interest of husband and duty of member of Village Panchayat in so far as subject matter of aforesaid resolution no. 5(3) is concerned. Since Respondent no. 1 has beneficial interest in business of his wife and since - 6 - he being married to her under the system of communion of assets he is automatic shareholder in her properties. Therefore he is disqualified to act as member of Panchayat as he has unduly influenced the decision of Village Panchayat to issue NOC to his wife. Therefore in terms of section 55(4) of the Goa Panchayat Raj Act, 1994 Respondent no.1 should not have voted or taken part in the discussion thereupon in the said meeting. Para 15:- By his conduct of remaining present and/or discussing and/or voting on the said resolution in the said meeting Respondent no.1 has acted in contravention of section 55(4) of the Goa Panchayat Raj Act, 1994.” 5. On such allegation and relying on the judgments of this Court in Writ Petition No. 109/2009, Agnelo Lobo Vs. - 7 - Sanajay Pednekar and Writ Petition No. 497/2009, The Akhada St. Estevam Village Development and Protection Samittee and others Vs. Smt. Seema Rohidas Narvekar and others, it is submitted by the Petitioner that Respondent no. 1 stands disqualified and his seat from Village Panchayat is vacant. It is categorically alleged that the proceedings sheet shows that first Respondent has not abstained from the discussions and that he participated in them. In these circumstances, aforesaid declaration has been claimed. It is held by the Directorate of Panchayat that issue of disqualification of the member of Panchayat cannot be decided by him and that is how Petitioner has invoked writ jurisdiction of this Court. In para 23 of the petition it is alleged as follows:- Para 23:- “The Petitioner submits that the Respondent no.1 in the reply to the said petition has contended that the said petition is not maintainable and he had gone out of the meeting hall during that time item no. 5(3) was taken up and this fact is not been recorded by the Secretary - 8 - and the said permission has been revoked on 15.7.2008. The Respondent no. 1 has further alleged that by resolution dated 15.7.2008 the NOC dated 22.2.2008 is revoked upon application of Mrs. Sweta Morajkar wife of Respondent no.1 by resolution no.8(2) and subsequently by resolution dated 17.10.2008 the resolution no. 5(3) dated 28.12.2007 is corrected. It is seen that these two resolutions that they are also in relation to the subject matter of wife of Respondent no.1 and in these two resolutions also the Respondent no.1 has participated. The contention of Respondent no.1 that the NOC stands revoked and the resolution dated 28.12.2007 is corrected by subsequent resolutions does not in any manner help the Respondent no.1 but it further shows that Respondent no.1 has further - 9 - participated in such resolution. In any case the revocation of NOC does not affect the first resolution and further the correction of the resolution does not affect the Petitioners case and such resolution could not have been taken since the Goa Panchayat Raj Act prescribed procedure for modification of the resolution which has not been followed. Therefore the Respondent no.1 cannot take benefit of these subsequent resolutions and in any case these resolutions further strengthen the Petitioners case.” 6. On being served with the copy of the writ petition the first Respondent filed an affidavit and stated that writ petition is not maintainable as he has not incurred any disqualification. It is alleged that Petitioner has personal enemity with Respondent no.1. Earlier also Petitioner made an attempt to disqualify him through one Mr. Ashok Ladu Arlekar by filing petition before the - 10 - Director of Panchayat being Panchayat Petition no. DP/P/6/2008 but the same failed and this is a second attempt through the said Ashok Ladu Arlekar to disqualify him. In paras 8 and 9 of the affidavit in reply the Respondent no.1 alleged as under:- Para 8 :- “With reference to paragraph 11 of the petition, I deny that I participated in any discussion, in the meeting held on 28.12.2007, when the application filed by my wife, Mrs. Sneha Morajkar was taken up for discussion. I say that I was neither party, nor privy to the decision of the Panchayat to issue NOC to my wife. I say that I did not directly or indirectly influence the decision of the Panchayat, to grant NOC to my wife. I say that I abstained from participating in the discussion, and remained outside the premises, when the matter relating to the grant of application filed by my wife - 11 - was taken up for consideration by Village Panchayat. I say that though it is true, that I was present on the day i.e 28.12.2007, when the aforementioned fortnightly meeting of the Panchayat was held, I deny that copy of the proceeding sheet of the above referred meeting dated 28.12.2007 in any manner states or indicates, that I participated in the discussion when the application made by my wife was taken up for consideration in the above fortnightly meeting held on 28.12.2007, though it is true, that the proceeding sheet wrongly records that Santosh Bhaidkar had seconded the proposal. It is not true, that the name of Santosh Bhaidkar was written, instead of my name, as the Seconder in the respect of the said resolution. - 12 - I say that I did not participate in the discussion relating to the application made by wife. I did not endorse the same, either as Proposer or Seconder. Para 9:- I say that the then, Secretary of the Village Panchayat Mr. Kishor Pagi, has not properly recorded the minutes of the meeting held on 28.12.2007, in as much as, it has not been specifically recorded in the minutes that I had abstained myself from the discussion relating to the application filed by my wife for NOC, and had not participated in the decision of the Panchayat taken thereon. Annexed hereto and marked as Exhibit R- 1/A colly are the minutes of the concerned meeting, as written by Shri Kishor Pagi. I say that it is apparent from the said minutes that Shri Kishor Pagi has not written the minutes properly, but has - 13 - written then haphazardly, and casually.” 7. Thus, making allegations against the Secretary of Village Panchayat Mr. Kishor Pagi, Respondent no.1 contended that petition should not be entertained and be dismissed. Bearing in mind the affidavit placed on record on behalf of the contesting parties and Respondent no. 7, this Court passed an order appointing an Advocate Shri R. G. Ramani as a Commissioner for recording evidence. The Commissioner has recorded the evidence and submitted his report to the Court. Thereafter, the petition has been placed before us. In the light of the rival contentions we proceed to issue Rule. The contesting respondents waive service. By consent of the parties we have taken up the petition for hearing and final disposal forthwith. 8. Mr. Sardessai learned Advocate appearing on behalf of the Petitioner has invited our attention to the NOC and even the certificate dated 7.1.2008 issued by Sarpanch of Village Panchayat of Verla Canca and submitted that the Petitioner's case stands proved. Inviting our attention to the minutes of the - 14 - meeting, it is contended by Shri Sardessai that the mistake has been corrected at pages nos. 35 and 36 of the petition/paper book which shows that allegations made against the Secretary of Panchayat are not substantiated by the Petitioner at all. Thus the Respondent no.1 cannot take advantage of so called mistake. Our attention is also invited to the record which was forwarded by the Commissioner and it is submitted that Respondent no.1 is falsely contending that he was absent at the meeting or that when the item was taken up for discussion he left the venue of the meeting. Our attention is invited to the deposition of the Petitioner and it is contended by Shri Sardessai that there is no cross examination on vital points. It is submitted that in the examination in chief of Secretary of Panchayat factual aspect has been clarified and it is proved that resolution no. 5(3) is recorded in the minutes. It is categorically stated by the Secretary that Respondent no. 1 was present at the meeting held on 28.12.2007 throughout and he participated in the proceedings. He has stated in the examination in chief that the application of Smt. Sweta Morajkar was taken up for discussion and resolution no. 5(3) was passed. Shri Sardesai, submitted that there is no cross examination on this aspect. In - 15 - such circumstances and when in the evidence of Respondent no. 1 there is no statement that resolution incorrectly records the events and there is no attempt to seek any clarification, or correction, ingredients of section 12(1) (d) read with Section 55(4) of the Goa Panchayat Raj Act stand satisfied. Further, Respondent no.1 has not examined a vital witness, according to him, namely, Shri Laxmikant Bicholikar the presumption must be drawn from this non examination and that is if the said Bicholkar had been examined he would not have corroborated and supported the version of Respondent no.1. In these circumstances, this Court should issue the necessary declaration. Mr. Sardessai has placed reliance on the decisions of this Court in Writ Petition No. 497/2009, The Akhada St. Estevam Village Development and Protection Samittee and others Vs. Smt. Seema Rohidas Narvekar and others, Writ Petition No. 295/2010. Shri Jagdish Bhobe Vs. State of Goa and others and Writ Petition No. 464/2008, Shri Lenocio Raicar Vs Shri Martinho Rocha and others. 9. On the other hand Mr. D. Pangam, learned Advocate - 16 - appearing for Respondent no.1 submits that the provisions that are relied upon to seek disqualification of the Respondent no.1 are penal in nature. They pertain to his disqualification and therefore must be strictly construed. Shri Pangam, submits that the averments in the petition are not that the Respondent no.1 participated in the discussion but the averment is regarding presence of Respondent no.1 in the meeting held by the Panchayat on 28.12.2007 and at which several subjects were discussed. Respondent no.1 took part in the meeting but that is different and distinct than taking part in the discussion on the item or question of grant of NOC to his wife. Mr. Pangam, invited our attention to para 9 of the examination in chief of the Petitioner and deposition of PW2. He submits that there is no proof of the Petitioner participating in the discussion on this question or item. In these circumstances no reliance can be placed on the minutes of the meeting and particularly when the witness namely the Secretary of the Village Panchayat has admitted that there are mistakes and errors in the same. That apart, the resolution does not state that Respondent no.1 has taken part in the discussion. There is no positive evidence in this - 17 - behalf. Hence, no inference can be drawn that the Respondent no.1 participated in the discussion. In such circumstances when there is no clear case that the Respondent no.1 was present at the meeting and in any event there is no clinching evidence that he took part in the discussion on the subject item/question and when no direct pecuniary interest of Respondent no.1 is proved, then, it must be held that the Petitioner has not substantiated his allegations. The petition therefore be dismissed. More so, when the burden is on the Petitioner to prove all the allegations. First Respondent is handicapped because copy of the application of the wife for grant of NOC was not provided to him nor copy of the resolution was provided and his request to provide him with the same was ignored by Block Development Officer. Since the mistake in the minutes and proceedings has been admitted and that is clear from the deposition of PW2, then, all the more the petition be dismissed. Mr. Pangam, submitted that the decisions that are relied upon by Shri Sardessai are in no way applicable to the facts of the present case. Assuming that they lay down the principle that participation in the proceedings means participation in the discussion, then, to that extent they so hold that they - 18 - should not be followed. For all these reasons, he submit that the petition be dismissed. 10. For properly appreciating the rival contentions a reference will have to be made to section 12(1) and section 55(4) of the Act. To the extent they are relevant, they are reproduced herein below:- Section 12(1) (d):- Votes or takes part in discussion in contravention of the provisions of sub section (4) of Section 55, his seat shall be deemed to be or to have become, as the case may be, vacant. Section 55(4):-No member of a Panchayat shall vote on, or take part in the discussion of, any question coming up for consideration at a meeting of a Panchayat, if the question is one in which, apart from its general application to the public, he has any pecuniary interest and if the person presiding has such an interest, he shall not - 19 - preside over the meeting when such question comes up for consideration.” 11. A perusal thereof would indicate that if a member votes or takes part in the discussion in contravention of provisions of sub section 4 of Section 55 his seat shall be deemed to be or have become vacant. 12. The above provisions are made in the Goa Panchayat Raj Act. The Act is enacted to fulfill the constitutional objective relating to Panchayat Raj for greater participation of the people and more effective implementation of Rural development programme. The definitions are under Section 2. Chapter II deals with Gramsabha and Constitution of Panchayat. Section 6 which in this chapter sets out the function of Gramsabha whereas Section 7 and Section 8 deal with Constitution of Panchayats and their incorporation. The qualification for membership is provided in Section 9 and disqualification is under Section 10. The decision on question as to disqualification is to be referred to the State Election Commission and thereafter Section 12 provide for - 20 - vacation of seat by members. There, BDO has been given limited powers and that is to deal with a question covered by clause (b) and (c) of Section 12(1). Learned Counsel appearing for the Petitioner is right in urging that there is no provision in the Act by which the question of vacation of seat by the member under Section 12(1) (d) can be dealt with and decided. This is not a ground on which election can be set aside by filing an election petition. Therefore, the matter must be decided by this Court. The provisions such as Section 12(1)(d) read with Section 55(4) are inserted with a view to avoid any conflict between public duty and private interest. In a decision reported in AIR 1955 SC page 459, N. Stayanathan Vs. K. Subramanyan and others, the Hon'ble Supreme Court has held that Section 7 is intended to ensure that there is no occasion for conflict between public duty and private interest. The elected member has clear and free choice before him. If he is anxious to serve the community as a member he has to give up all his private gains. 13. In another decision reported in AIR 1966 Supreme Court 1339 Ghulam Yasin Vs. Sahebrao Yeshwantrao and - 21 - another, the Hon'ble Supreme Court has observed thus:- Para 7:- “The question which we have to consider is whether by virtue of his relationship with Khalildad Khan, the appellant can be said to have any indirect share or interest in the employment of Khalildad Khan with the Municipal Committee. We are assuming for the purpose of dealing with this point that the contract to which clause (1) refers, includes employment, though unlike other similar statutes, the word “employment” is not specifically mentioned in the said clause. In order to incur disqualification, what the clause requires is “interest or share in any contract”; it may either be a share or an interest; and if it is an interest, the interest may be direct or indirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interests; it must mean interest which is pecuniary, or material or of a similar nature. If the interest is of this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the clause also requires - 22 - that the person who incurs disqualification by such interest must “own such share or interest”. It is not easy to determine the scope of the limitation introduced by this last sub-clause. Mr Gauba for Respondent 1 urged that the clause “owning such share or interest” is tautologous when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest. Prima facie, there is some force in this contention; but whatever may be the exact denotation of this clause, it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause, and it would not be easy to ignore the existence of the last portion of the clause altogether. Para 8:- It is quite true that the purpose and the object of prescribing the several disqualifications enumerated in clauses ( a ) to (1) of Section 15 of the Act is to ensure the purity of the administration of municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in Section 15 should not receive an unduly narrow or - 23 - restricted construction. But even if we were to adopt a liberal construction of Section 15(1), we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment.” 14. Therefore, we must decide this matter by applying the aforesaid principles and bearing in mind the purpose of the provisions. - 24 - 15. In the Writ Petition, the Petitioner has made allegations which we have reproduced above. After this Court passed an order appointing the commissioner to record the evidence, the Petitioner filed his affidavit in evidence and stated that in the meeting held on 28.12.2007 the application of