1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO.195 OF 2011 Shri Sandip Arjun Vazarkar, 40 years,married, Indian National, Member of Village Panchayat of Socorro, r/o H.No. 1032, Zoswado, Socorro, Bardez, Goa. .. Applicant. Versus 1. Shri Rajesh Madhukar Khautankar, major, married, Indian National, r/o H.No.1057/4, Zoswado, Socorro, Bardez, Goa. 2. Shri Yuvraj Shantaram Mayekar, major in age, r/o Zoswado, Socorro, Porvorim, Bardez, Goa. 3. Shri Rajesh Narayan Sawaikar, major in age, r/o Zoswado, Socorro, Porvorim, Bardez,Goa. 4. The Returning Officer for Bardez III and Joint Mamlatdar of Bardez III, Mapusa, Bardez, Goa. .. Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. A. V. Pavitran, Advocate for the applicant/ petitioner. Mr. V. B. Nadkarni, Senior Advocate with Mr. P. A. Kamat and R. Noronha, Advocates for respondent no.1. Coram :- A. P. Lavande, J. Reserved on : - 24 th August, 2011 Pronounced on :- 29 th August, 2011 P.C. Heard Mr. Dessai, learned Senior Counsel for the applicant and Mr. Nadkarni, learned Senior Counsel for respondent no.1. 2 2. By this application, the applicant seeks an order restraining respondent no.1 from acting/ operating/ participating as an elected member/ panch from Ward No.VIII of Village Panchayat of Socorro. 3. The election of the applicant/ petitioner as a member of Village Panchayat from Ward No.VIII of Village Panchayat, Socorro has been set aside by the judgment and order dated 29th July, 2011 passed by the Administrative Tribunal in Panchayat Election Peition No.14/2007 filed by respondent no.1 under Section 16 of the Goa Panchayat Raj Act, 1994 ('The Act' for short) and in terms of the said judgment, election of the applicant/ petitioner herein is declared null and void. Reply filed on behalf of respondent no.1 discloses that after the impugned judgment and order was passed, Director of Panchayat issued notification dated 8th August, 2011 declaring respondent no.1 as elected member of Village Panchayat Socorro and the notification has been published in official gazette dated 11th August, 2011 and thereafter, the Block Development Officer, Bardez gave oath to respondent no.1 on 11th August, 2011 itself and since then, respondent no.1 is functioning as a member of Village Panchayat, Socorro. 4. Mr. Dessai, learned Senior Counsel appearing for the applicant/ petitioner submitted that the Administrative Tribunal after having declared the election of the applicant/ petitioner null and void, could not have declared respondent no.1 elected since he polled 119 votes and respondent nos.2 and 3 polled 74 and 28 3 votes respectively. Learned Counsel, therefore, submitted that in terms of Section 21 of The Act, the Tribunal could not have declared respondent no.1 elected and, therefore, respondent no.1 is not entitled to continue as member of Village Panchayat. According to learned Counsel, the Tribunal ought to have gone into the aspect of disqualification of the applicant/ petitioner and the order of Scrutiny Committee could not have been relied upon by the Tribunal. Placing reliance upon Section 101 of the Representation of the People Act, 1951 which is in pari materia with Section 21 of The Act, Mr. Dessai submitted that having regard to the settled law laid down by the Apex Court, respondent no.1 could not have been declared elected and as such, his continuance as a member of Village Panchayat is patently illegal. Learned Counsel further submitted that the applicant/ petitioner has made out a strong prima facie case and as such, is entitled to the interim relief sought. In support of his submissions, learned Counsel relied upon the following judgments : (i) Keshav Laxman Borkar Vs. Devrao Laxman Anande; AIR 1960 SC 131. (ii) Vishwanatha Reddy Vs. Konappa Rudrappa Nadgouda and another; AIR 1969 SC 604 (iii) D. K. Sharma Vs. Ram Sharan Yadav and Others; AIR 1993 SC 95. (iv) Thiru John Vs. The Returning Officer and Others; (1977)3 SCC 540. 4 5. Per contra, Mr. Nadkarni, learned Senior Counsel appearing for respondent no.1 submitted that respondent no.1 having been duly declared elected by the Tribunal and having been given oath, is entitled to function as a member of Village Panchayat . Learned Counsel further submitted that neither prejudice nor irreparable loss or injury would be caused to the applicant/ petitioner in case the interim relief sought is not granted in favour of the applicant/ petitioner, but if the interim order is granted, serious prejudice would be caused to respondent no.1. According to learned Counsel the applicant / petitioner had not taken any specific defence before the Tribunal that in the event the election of applicant/ petitioner is set aside, respondent no.1 was not entitled to be declared as duly elected as claimed by respondent no.1. Learned Counsel further submitted that grant of interim relief as sought by the applicant would amount to granting final relief which has been deprecated by the Apex Court. Learned Counsel further submitted that the principles governing grant of injunction under Order XXXIX of C.P.C. are required to be taken into consideration although Order XXXIX of C.P.C. is not applicable to the petition under Article 226 or 227 of the Constitution of India. In support of his submissions, learned Counsel relied upon the following judgments : (i) State of Uttar Pradesh and others Vs. Ram Sukhi Devi; AIR 2005 SC 284. (ii) Union of India Vs. Era Educational Trust and another;AIR 2000 SC 1573. 5 (iii) Dalpat Kumar and another Vs. Prahlad Singh and others; AIR 1993 SC 276. 6. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 7. There is no dispute that pursuant to the judgment passed by the Tribunal, respondent no.1 has been declared elected by a notification issued on 11th August, 2011 and on the same day, oath was administered to him by the Block Development Officer. The question, therefore, which arises for consideration is whether at this stage, respondent no.1 should be restrained from functioning / discharging the functions as a member of Villagae Panchayat, Socorro. 8. Admittedly, respondent no.1 has been presently functioning as a member of Village Panchayat after having been declared elected by the Tribunal. I find merit in the submission of Mr. Nadkarni that even if the applicant has made out a very strong prima facie case, the other two factors i.e. balance of convenience and irreparable loss and injury are in favour of respondent no.1. Therefore, even if Mr. Dessai is right in contending that the Tribunal could not have declared respondent no.1 elected, it would not be appropriate at this stage to restrain respondent no.1 from discharging functions as a member of Village Panchayat. Moreover, by separate order passed today in the Writ Petition, I have issued Rule and Rule is made returnable on 14th November, 6 2011. Therefore, in my considered opinion, the applicant is not entitled to interim relief sought for by him. 9. In view of the above, I find that this is not a fit case to grant interim relief as prayed for. Hence, the application is dismissed. 10. The application stands accordingly disposed of. A. P. LAVANDE, J. SMA