1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.295 OF 2010 Shri Jagdish Bhobe, age 40 years, r/o. H.No.549, Forgottem, Goa Velha, Tiswadi, Goa. ......... Petitioner. V/s. 1. State of Goa, through the Chief Secretary, having office at Secretariat, Porvorim, Bardez, Goa. 2. The Village Panchayat of St. Andre (Goa Velha), through its Secretary, having office at Goa Velha, Tiswadi, Goa. 3. The Director of Panchayats, Junta House, 3rd Lift, 3rd Floor, Panaji, Goa. 4. Mr. Andrew Pereira alias Mr. Andre Evaristo Antonio Pereira, House NO.454/2, Mascarenhas Waddo, Goa Velha, Tiswadi, Goa. ........ Respondents. Mr. A. Nachinolkar, Advocate for the petitioner. Mr. M. Salkar, Addl. Govt. Advocate for respondents No.1 and 3. Mr. Noel Dias Sapeco, Advocate for respondent No.2. Mr. G. Teles, Advocate for respondent No.4. 2 CORAM : A.S. OKA & F.M. REIS, JJ. Date of reserving the Judgment : 9th August, 2010 Date of pronouncing the Judgment : 16th August, 2010 J U D G M E N T :- (Per A.S. OKA, J.) 1. On 19th April, 2010, notice for final disposal of the writ petition at the admission stage was issued. Rule. Learned Additional Government Advocate for respondents No.1 and 3 waives service. Learned Counsel appearing for the second respondent waives service. Learned Counsel appearing for the fourth respondent also waives service. 2. The petitioner is an elected Member of the Village Panchayat of St. Andre (Goa Velha), which is the second respondent herein. The fourth respondent is an elected Member of the said Village Panchayat from Ward No. 8. The contention raised in this petition, in short, is that the fourth respondent has incurred disqualification under Section 12(1)(d) of the Goa Panchayat Raj Act, 1994 (hereinafter referred to as “the said Act of 1994”) and the seat of the fourth respondent, as a Member of the second respondent Village Panchayat, is deemed to have become vacant. The fourth 3 respondent has been elected as a Sarpanch of the second respondent on 18th August, 2009. A meeting of the second respondent Village Panchayat was held on 14th August, 2009. In the said meeting, the fourth respondent was present as a Member of the Village Panchayat. A resolution was passed in the said meeting for transferring the house tax of house bearing No.454/2 known as Mascarenhas Waddo in Goa Velha, from the name of the fourth respondent to the name of Mrs. Felicidade Agnelo Gonsalves. The said Mrs. Felicidade Gonsalves happens to be the mother of the fourth respondent. It is stated in the petition that the fourth respondent participated in the said meeting when the said resolution was passed. 3. One Mr. Amar De Silva made a complaint dated 28th October, 2009 to the Block Development Officer of Tiswadi, alleging that the fourth respondent, who was Sarpanch of the second respondent Village Panchayat, was constructing a new house in the plot bearing survey No.145/7 known as “Mourecho Bhat” of revenue Village Goa Velha, without obtaining conversion sanad and necessary permissions from the concerned authorities. It is stated that the plot surveyed under Survey No.145/7 was registered in the name of father of the fourth respondent as per mutation No.529. A copy of Form I & 4 XIV showing the name of the father of the fourth respondent has been annexed to the petition. On 28th October, 2009, the Block Development Officer, Tiswadi issued a notice cum order under Section 66 the said Act of 1994, based on the complaint of Mr. Amar De Silva. By the said notice cum order, the Block Development Officer, in exercise of powers under Section 66(6) of the said Act of 1994, directed the fourth respondent and/or his father or any person claiming under them, to immediately stop the construction of a new house in the land surveyed under Survey No.145/7. It was stated in the notice that on receipt of the show cause notice, the fourth respondent and his father should produce attested copies of the construction licence with plan, within a period of 7 days, failing which the said construction shall be deemed to be an illegal construction and necessary report shall be submitted to the Deputy Director of Panchayats. It must be noted here that the fourth respondent and his father preferred an appeal against the said notice cum order, being Panchayat Appeal No. 198/2009. The learned Counsel appearing for the fourth respondent submitted that the said appeal was not entertained. By the said communication dated 28th October, 2009, the Secretary of the second respondent Village Panchayat was directed to verify whether any construction licence is 5 issued for construction of a new house. The Secretary was directed to place the matter before the second respondent Panchayat in its fortnightly meting for passing necessary resolution for immediate action under sub-sections (3) and (4) of the said Act of 1994. 4. Accordingly, site inspection was carried out on 18th November, 2009 by the Block Development Officer, Secretary of the second respondent Village Panchayat, Talathi and others. The fourth respondent being the Sarpanch was a part of the inspection team. The site inspection attendance sheet records that the fourth respondent was present and the complainant Mr. Amar De Silva was also present. A panchanama was recorded and on the basis of the panchanama, a report of illegal construction was prepared by the Block Development Officer. The report recorded that no construction licence has been issued by the Village Panchayat and that the fourth respondent and his parents were carrying on illegal construction. It was recorded that the mother of the fourth respondent was the owner of the property. It was noted in the report that the second respondent had not taken any action to demolish the illegal construction. Accordingly, the report was submitted to the Deputy Director of Panchayats, requesting action under sub-section (5) of Section 66 of the said Act of 1994. 6 5. A show cause notice dated 4th February, 2010 has been issued by the Director of Panchayats to the fourth respondent, calling upon him to show cause as to why action as prayed for by the complainant (present petitioner) should not be initiated against the fourth respondent under Section 50(4) and 50(5) of the said Act of 1994. 6. The petitioner is relying upon the minutes of the fortnightly meeting of the second respondent Village Panchayat held on 2nd February, 2010. The fourth respondent was present as the Sarpanch in the said meeting. In the said meeting, the fourth respondent himself placed before the Panchayat a letter received from Mr. Amar De Silva and the stop-work notice issued to his own mother. Reliance is placed by the petitioner on the meeting of the second respondent held on 24th February, 2010 which was chaired by the fourth respondent as the Sarpanch. It is stated that the construction file of the mother of the fourth respondent was placed before the meeting. The file was as regards proposed extension to existing house in Survey No.145/7/G. It is alleged in the petition that the fourth respondent participated in the discussion and voted on the 7 said issue. It is alleged in the petition that the illegal construction was carried out by the fourth respondent on the land surveyed under the aforesaid survey number and that he had pecuniary interest in the said subject No.3(C) of the meeting of the second respondent Village Panchayat held on 24th February, 2010. The first prayer in the petition is for issuing a writ of quo-warranto, directing the fourth respondent to discontinue functioning as a Member of the second respondent Village Panchayat and to discontinue holding office as the Sarpanch of the second respondent Village Panchayat. The second prayer is for a declaration that the fourth respondent stands disqualified under Section 12(1)(d) of the said Act of 1994. 7. The second respondent has filed an affidavit. Various details have been set out as regards the action taken by the Village Panchayat. The fourth respondent has filed an affidavit. It is contended that by taking part and voting in the meeting of the Panchayat on the question of grant of permission to the mother of the fourth respondent, no pecuniary interest has been derived or accrued upon the fourth respondent. It is contended that the property surveyed under Survey No.145/7 belongs to his mother and he has no share in the property. It is stated that his father is a co-owner of the said 8 plot by virtue of the Regime of Communion of Assets under the Portuguese Civil Code. The fourth respondent stated that he is staying separately at House No.454/2 along with his wife and children. He submitted that he is not the only child of his mother. It is stated that the construction has been carried out by his mother in survey No.145/7 and he has played no role in the same. There is a rejoinder filed by the petitioner to the said affidavit, denying various contentions raised in the reply. 8. The learned Counsel appearing for the petitioner has relied upon a decision of this Court in Writ Petition No.497/2009 dated 5th March, 2010 in the case of The Akhada St. Estevam Village Development and Protection Samittee and others vs. Smt. Seema R. Narvekar and others. He submitted that this Court held that to ensure purity of administration of local bodies, the provisions relating to disqualification should not receive an unduly narrow or restricted construction. He submitted that the notice cum order under Section 66(6) of the said Act of 1994 was issued against the fourth respondent and though the fourth respondent purported to challenge the same, the challenge failed. He submitted that the documents annexed to the petition show that though the property may be standing in the name 9 of the mother of the fourth respondent, the fourth respondent carried out illegal construction of a house on the land in survey No.145/7. He invited our attention to the site inspection attendance sheet and the panchanama, as well as the report of the Block Development Officer which show that the illegal construction has been carried out by the fourth respondent and his parents. He pointed out that even when the discussion was made in the Panchayat meeting on the complaint regarding the illegal construction of the house in question, the fourth respondent participated in the discussion. He pointed out that in the meeting held on 14th August, 2009 and 2nd February, 2009, the fourth respondent has actively participated not only in the discussion, but in the decision making process on the subject i.e. the said house in which he had pecuniary interest. The learned Counsel appearing for the petitioner invited our attention to sub-section (4) of Section 55 and submitted that the fourth respondent ought not to have participated in the meeting. He submitted that the disqualification under clause (d) of sub-section (1) of Section 12 of the said Act of 1994 is automatically attracted and the fourth respondent stands disqualified. The learned Counsel appearing for the fourth respondent submitted that the property bearing survey No.145/7 stands in the name of the mother of the fourth respondent and while replying to the 10 notice cum order under Section 66(6) of the said Act of 1994, a stand has been clearly taken by the fourth respondent that he has not constructed the structure. He invited our attention to reply dated 3rd November, 2009 submitted by the fourth respondent to the Block Development Officer. He also invited our attention to the Memorandum of Appeal filed by the fourth respondent and his father for challenging the notice cum order dated 28th October, 2009 under Section 66(6) of the said Act of 1994. He stated that a stand has been taken therein that the appellant (present petitioner) is not concerned with the same. He submitted that an application was made by the complainant Mr. Amar De Silva under Section 66(5) of the said Act of 1994 which has been disposed of as infructuous by the Dy. Director of Panchayats. He invited our attention to the order passed in the appeal preferred by the mother of the fourth respondent under Section 66(2) of the said Act of 1994, by which a direction was given to the second respondent to consider the application for regularisation, if made by the fourth respondent's mother. He submitted that thus, the fourth respondent is not concerned, in any manner with the construction and the fourth respondent has no right, title or interest of whatsoever nature in respect thereof. He submitted that as the fourth respondent is not concerned with the said structure 11 in any manner, the fourth respondent cannot have any interest, much less a pecuniary interest. He submitted that unless disqualification is clearly established, a democratically elected Member of the Village Panchayat cannot be disqualified. He urged that no interference is called for and the petition may be rejected. 9. The learned Counsel appearing for the petitioner pointed out that the application under Section 66(5) of the said Act of 1994 by the complainant Mr. Amar De Silva was disposed of on the ground that a construction licence has been granted on 29th April, 2010 pursuant to the regularisation of the construction approved by the second respondent Village Panchayat, and the said application has not been rejected on merits. He submitted that undisputedly the fourth respondent had a pecuniary interest in the house and, therefore, the subject before the meeting of the Village Panchayat concerning the said house. 10. We have given careful consideration to the submissions. Section 12(1)(d) reads as under : “ 12. Vacation of a seat by members – (1) If a member of a Panchayat - (a) ... 12 (b) ... (c) ... (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.” Sub-Section (4) of Section 55 reads thus : “ 55. Quorum and Procedure - (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 preside over the meeting when such question comes up for consideration.” 11. In the case of The Akhada St. Estevam Village Development and Protection Samittee and others (supra), this Court had considered the meaning of “pecuniary interest”. This Court in paragraph 24 held that to ensure purity of administration of local bodies, the provisions relating to disqualification should not receive an unduly narrow or restricted construction. The phrase used in sub- 13 section (4) of Section 55 of the said Act of 1994 is “pecuniary interest”. The word “pecuniary” connotes “pertaining to money”. The expression “pecuniary interest”, therefore, necessarily means the interest which can be exacted in money or which is pertaining to money. The interest can be of different types. The interest can be in respect of a right in a property, benefit in a property or use of a property. If a person constructs a structure and the construction is sought to be demolished, it can be certainly stated that “pecuniary interest” of the person is affected, inasmuch as the demolition or destruction or damage to the structure will involve monetary loss. To attract sub-section 4 of Section 55, actual monetary gain or accrual of benefit is not necessary. Participation in a discussion involving “pecuniary interest” is sufficient. 12. On 14th August, 2009, in the meeting of the second respondent Village Panchayat, an application made by Mrs. Felicidade, mother of the fourth respondent, for transfer of house tax in respect of House No.454/2 in her name by deleting the name of the fourth respondent was considered and the said application was granted. It is not in dispute that the fourth respondent is an elected Member of the second respondent Village Panchayat and is at present 14 the Sarpanch. It is not disputed that he was present at the meeting and participated in the meeting. On 28th October, 2009 one Mr. Amar De Silva made a complaint to the Block Development Officer that the fourth respondent is constructing a new house in the land surveyed under Survey No.145/7 known as “Maurecho Bhat” situated at Mascarenhas Wado, in Goa Velha, with mutation No.529, registered in the name of his father. It was alleged that the construction was being carried on by the fourth respondent, without obtaining sanad of conversion and without obtaining necessary permissions. In Form No.I & XIV, in respect of the said land, the name of the father of the fourth respondent appears. On the basis of the complaint filed by the said Mr. Amar De Silva, on 28th October, 2009, notice cum order under Section 66(6) of the said Act of 1994 was issued by the Block Development Officer, material part of which reads thus : “ Now, therefore, I, the undesigned Block Development Officer, Tiswadi Block, in exercise of the powers conferred upon me u/s. 66(6) of the Goa Panchayat Raj Act, 1994 do hereby direct Shri. Andre Pereira and or Shri Antonio Pereira or any of his agents/representatives or any person claiming under them to immediately stop the new construction of house in survey No.145/7 known as Maurecho Bhat situated in Mascarenhas Wado in Goa Velha with mutation No.529 registered in the 15 name of his father Shri. Antonio Pereira in V.P. St. Andre upon receipt of this Stop Notice-Cum-Order and to submit to the undersigned within 7 days the attested copies of construction licence with plans (if any) failing which said construction shall be deemed to be an illegal construction and necessary report shall be submitted to D.D.P. (N) for further needful action.” By the same notice-cum-order, the Block Development Officer directed the Secretary of the Village Panchayat to verify whether any valid construction licence has been issued to the fourth respondent and his father. The Village Panchayat Secretary was directed to place the matter before the Village Panchayat in the fortnightly meeting for passing necessary resolution for immediate action under Section 66(3) and 66(4) of the said Act of 1994. Exhibit-D to the petition shows that in the presence of the fourth respondent, the Block Development Officer, Village Panchayat Secretary and others, an inspection was made on 18th November, 2009. The panchanama was drawn under the signatures of the Block Development Officer. The panchanama records that a new house has been constructed having approximate value of Rs.4,00,000/-. The plan drawn after inspection records that the construction is on the land surveyed under No.145/7. Therefore, 16 a request was made to the Deputy Director to take action in accordance with sub-section (5) of Section 66 of the said Act of 1994. The learned Counsel appearing for the fourth respondent has produced for perusal of this Court, a copy of Panchayat Appeal No.198/2009, preferred by the fourth respondent and his father for challenging the notice cum order dated 28th October, 2009. It is pertinent to note that all that the learned Counsel for the fourth respondent has stated is that the appeal was disposed of and a copy of the order in appeal is not placed on record. In the entire Memorandum of Appeal, there is no statement that it was the mother of the fourth respondent who has actually made the construction. Ground (iv) in the appeal is that the Block Development Officer ought to have ascertained whether really the fourth respondent and his father were doing any illegal construction. There is no statement in the Memorandum of Appeal that the fourth respondent is not concerned with the house in question and that it is the house of the mother of the fourth respondent. This is very relevant on the background of the fact that at the time of site inspection and at the time of drawing panchanama, the fourth respondent was personally present. After having failed in the appeal, as of today, no steps have been taken by the fourth respondent to challenge the said notice cum 17 order. The learned Counsel appearing for the fourth respondent relied upon the reply to the notice cum order. In the said reply, there is a denial of the allegation that the fourth respondent or his father were carrying on the illegal construction. There is a statement made that the fourth respondent is not the owner of the house. However, there is no statement that the fourth respondent's mother constructed the structure. The fourth respondent was present when the Block Development Officer carried out inspection on 18th November, 2009 when illegal construction of a house was noticed on survey No.145/7 in addition to another house of his father on the same property. The fourth respondent has annexed a copy of the Judgment dated 22nd April, 2010 of the Dy. Director of Panchayats in the appeal preferred by the fourth respondent's mother. The Dy. Director directed the second respondent Village Panchayat to consider the application for regularisation of the illegal structure. The order records that admittedly there exists an illegal construction in the property. Neither in the appeal filed by the fourth respondent, nor in the reply to the notice cum order, the fourth respondent has specifically stated that his mother has constructed the house or the structure. 13. In the aforesaid factual background, we will have to 18 consider what transpired in the meeting held on 2nd February, 2009 of the Village Panchayat. Admittedly, the fourth respondent was present in the meeting. Subject 4(2) was consideration of the complaint made by Mr. Amar De Silva. It is noted in the minutes that the fourth respondent placed before the meeting a stop work notice issued to his mother. It is stated that the order was read in the meeting and the same was noted. Thus, in the meeting there was a discussion about the show cause notice as regards illegal structure on land bearing survey No.145/7. As stated earlier, the Block Development Officer found that the fourth respondent had carried out the construction. 14. Thereafter, in the meeting held on 24th February, 2010 of the Village Panchayat, the fourth respondent was admittedly present. Subject 3(C) in the meeting was regarding the proposed extension to the existing house of Mrs. Felicidade, the mother of the fourth respondent on survey No.145/7/C. The extension is to the same house in respect of which the aforesaid notice cum order was issued. The construction file along with the No Objection Certificates of the Town Planner and the Assistant Engineer of P.W.D. were placed before the Village Panchayat. No Objection Certificate by the Directorate of Health Services was also placed. The proposal of regularisation was 19 sanctioned by the Village Panchayat. It is not the case of the fourth respondent that he abstained himself when the said file was placed before the meeting. The fourth respondent was very much present and participated in the meeting when the said subject No.3(C) was considered. In the affidavit-in-reply and in particular paragraph 42 there no denial of participation in the discussion on the subject, but it is sated that the fourth respondent had no interest in the construction carried out by his mother. 15. As stated earlier, the Block Development Officer found that the illegal structure of the house on survey No.145/7 was made by the fourth respondent, his father and mother. There is no further challenge to the order under Section 66(6) of the said Act of 1994 by the fourth respondent, though the order records that the fourth respondent was carrying out the illegal construction. The appeal preferred by the fourth respondent did not succeed. In the panchanama recorded by the Block Development Officer, the value of the structure is shown to be Rs.4,00,000/- approximately. Thus, in the subject of grant of permission/regularisation of extension of house on the said property, the fourth