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2013 DIGILAW 1395 (BOM)

Zarina Blanca Fernandes v. State of Goa

2013-07-23

A.P.LAVANDE, U.V.BAKRE

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JUDGMENT A.P. Lavande, J. Heard Mr. G. Teles, learned Advocate for the petitioner. Mr. S. Mahambrey, learned Additional Government Advocate for respondent No.1 and Mr. C.A. Coutinho, learned Advocate for respondent No.3. 2. Rule, by consent of the learned counsel for the parties heard forthwith. 3. By this petition, the petitioner seeks the following reliefs ;- a. For a writ of quo-warranto or in the nature quo-warranto or any other appropriate writ, order or direction: directing/ordering the respondent No. 3 to forthwith discontinue functioning as a member of respondent No. 2 village panchayat. b. For the declaration that respondent No.3 is disqualified under Section 12(1)(d) of the Goa Panchayat Raj Act, 1994 and the seat of respondent No.3 as a member of respondent No. 2 Village Panchayat is deemed to have become vacant. 4. Brief case of the petitioner is as under :- The petitioner is a panchayat member of Village Panchayat of Colva which is constituted under Goa Panchayat Raj Act, 1994 (hereinafter referred to as "the Act"). Respondent No.3 was elected as member from ward No.8 of the same Village Panchayat. Russel A. Pereira the son of respondent No.3 by communication dated 8th November, 2012 sought NOC for operating milk booth and the same was placed in the meeting of the panchayat held on 12th November, 2012. The application made by said Russel A. Pereira, was proposed by respondent No. 3 and seconded by another panch Mr. Menino Fernandes. It is further the case of the petitioner that even prior to said Russel A. Pereira, seeking NOC from the panchayat. Goa State Corporation Milk Producers Union Limited had addressed communication dated 6th November. 2012 to the Sarpanch of the Panchayat, inter alia, seeking permission to operate milk booth. In the said communication it was stated that respondent No.3 had discussed with Union and had assured them needful help. It is further the case of the petitioner that resolution granting NOC to Russel A. Pereira, was unanimously passed on 12th November, 2012 and the minutes of the said meeting were unanimously confirmed in the meeting held on 26th November, 2012 in which respondent No.3 also participated. It was therefore, the case of the petitioner that respondent No.3 stands disqualified as a member of said Village Panchayat in terms of Section 12(1)(d) read with Section 55(4) of the Act. 5. It was therefore, the case of the petitioner that respondent No.3 stands disqualified as a member of said Village Panchayat in terms of Section 12(1)(d) read with Section 55(4) of the Act. 5. On behalf of respondent No.3, affidavit has been filed denying the case of the petitioner. If is the case of respondent No. 3 that he had no pecuniary interest in issuing NOC to Russel A. Pereira, for operating a milk booth. It is further the case of respondent No.3 that said milk booth could not be set up since Tourism Department could not grant NOC. It is further the case of respondent No.3 that there is absolutely no conflict of interest in he being member of the panchayat and participating in the meeting in which Russel A. Pereira, was granted NOC by the panchayat. 6. Mr. G. Teles, learned counsel appearing for the petitioner invited our attention to the pleadings and documents produced in support of the petition and also birth certificate of Russel A. Pereira, issued by Directorate of Planning, Statistics and Evaluation which discloses that son of respondent No.3 was born on 27th January, 1996. Mr. Teles, submitted that since respondent No. 3 participated in the meeting of the panchayat dated 12th November. 2012 in which resolution which was proposed by respondent No.3 regarding grant of NOC to Russel A. Pereira was unanimously approved, respondent No.3 is liable to stand disqualified in view of Section 12(1)(d) read with Section 55(4) of the Act. Learned counsel further submitted that respondent No. 3 further participated "in the meeting held on 26th November, 2012 in which minutes of meeting dated 12th November, 2012 were confirmed and therefore, respondent No. 3 stands disqualified as member of the panchayat. Mr. Teles further submitted that as on 8th November, 2012. Russel A. Pereira, was a minor being less than 18 years of age and. as such, it is clear that actually it was respondent No. 3 who was beneficiary of the NOC granted by the panchayat therefore respondent No. 3 stood disqualified under the provisions of the Act. According to the learned counsel respondent No. 3 had pecuniary interest in the resolution proposed by respondent No. 3 and unanimously approved by the panchayat and therefore respondent No. 3 stands disqualified as a member of panchayat. 7. According to the learned counsel respondent No. 3 had pecuniary interest in the resolution proposed by respondent No. 3 and unanimously approved by the panchayat and therefore respondent No. 3 stands disqualified as a member of panchayat. 7. In support of his submissions learned counsel placed reliance upon following judgments :- i. Mansoor Mulla v. State of Goa. ii. Shri Lenocio Raicarv. Shri Martinho Rocha and others. iii. Mohan Vithal Dabhale v. Santosh Vasant Morajkar and others. 8. Per Contra. Mr. Coutinho, learned counsel appearing for respondent No.3 submitted that mere participation of respondent No. 3 in the resolution passed by the panchayat granting NOC to Russel A. Pereira by itself does not attract disqualification of the member in terms of provisions of the Act and it cannot be said that Section 12(1)(d) and Section 55(4) of the Act are attracted. According to the learned counsel, there is absolutely no pleadings in the petition that actually it was respondent No.3 who was beneficiary of the NOC granted by the panchayat and. as such, the submission in this regard by the learned counsel for the petitioner is completely devoid of merit. He further submitted that participation of respondent No. 3 in the resolution in which panchayat granted NOC to Russel A. Pereira. son of respondent No.3 would not amount to respondent No.3 taking part in the discussion in which he had any pecuniary interest and, as such. Section 12(1)(d) read with Section 55(4) of the Act is not attracted. Learned counsel therefore, submitted that no case has been made out for grant of any relief in favour of the petitioner. In support of his submissions learned counsel relied upon judgments of the Apex Court in the case of Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar and Ors.. AIR 1966 SC 1339 and Zelia M. Xavier Fernandes E. Gonsalves v. Joana Rodrigues and others. (2012) 3 SCC 188 . 9. We have carefully considered the rival submissions. perused the record and the judgments relied upon. 10. The short question which arises for consideration is whether respondent No. 3 stood disqualified as a panch member of Colva panchayat having participated and voted in favour of resolution granting NOC to his son Russel A. Pereira in terms of Section 12(1)(d) read with Section 55(4) of the Act which reads thus : Section 12 (1) : If a member of a panchayat-......... (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 preside over the meeting when such question comes up for consideration. 11. Before dealing with the rival contentions, we deem it appropriate to refer to the judgments relied upon by both the sides. In the case of Shri Lenocio Raicar (supra), the Division Bench was dealing with the case in which respondent No. 1 had entered into a Leave and Licence Agreement with Idea Cellular Ltd., for the purpose of erecting tower and installing equipments. Respondent No.1 was a member of Village Panchayat. Respondent No.1 attended the meeting of the panchayat in which file pertaining to construction of tower of Idea Cellular Limited was considered and approved. The resolution c was proposed by respondent No. 1 who was member of panchayat. He also took part in the discussion and voted thereof. The question which arose was whether by virtue of his participation, the seat of respondent No. 1 should be deemed to have become vacant. The Division Bench of this Court held that it is sufficient if the subject matter discussed or the resolution passed leads to or results or assists in the accrual of or has the effect of leading to, resulting in or assisting or has the potential to result or assist in enabling the member realizing the pecuniary interest. The Division Bench further held that the respondent No. 1 had pecuniary interest in the subject matter of the resolution. The Division Bench further held that purpose of Section 12(l)(d) read with Section 55(4) of the Act is to ensure the purity and fairness in the proceedings, working and dealings of the village panchayat by ensuring that there is no misuse of the fiduciary capacity occupied by its members. The Division Bench further held that purpose of Section 12(l)(d) read with Section 55(4) of the Act is to ensure the purity and fairness in the proceedings, working and dealings of the village panchayat by ensuring that there is no misuse of the fiduciary capacity occupied by its members. The provisions are based on public policy and it would make no difference even if the agreement was subsequently not implemented for any reason and the same was irrelevant for the purpose of Sections 12 and 55 of the said Act. In the case of Mohan Vithal Dabhale (supra) the case of the petitioner was that he is the voter at Verla Canca village panchayat and that respondent No.1 was elected as panch member stood disqualified in view of his act in supporting wife in obtaining NOC from village panchayat. The wife of respondent No. 1 Smt. Sweta Morajkar had filed an application requesting for NOC to start a business of hotel/restaurant in plot bearing No. 12/22 situated at Verla Canca, Bardez Goa. In the meeting held by Panchayat in which the subject of NOC to wife of respondent No. 1 was discussed, respondent No. 1 was present and he had signed a the proceedings sheet. The Division Bench held that since the participation of respondent No. 1 in the discussion where the question of grant of NOC to wife of respondent No. 1 was taken up was established, disqualification of respondent No. 1 was clearly attracted and consequently allowed the Writ Petition. In the case of Mansoor Mulla (supra) it was the case of the petitioner that at the meeting of the Village Panchayat of Curti Khandepar held on 29th May. 2009 the panchayat resolved to issue construction licence to respondent No.2 as per the revised plan for construction of residential building in survey No. 59/0 of 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. Respondent No. 2 also voted for the said resolution. According to the petitioner respondent No.2 stood disqualified in view of Section 12(1) (d) read with Section 55(4) of the Act. The Division Bench (to which one of us A.P. Lavande. Respondent No. 2 also voted for the said resolution. According to the petitioner respondent No.2 stood disqualified in view of Section 12(1) (d) read with Section 55(4) of the Act. The Division Bench (to which one of us A.P. Lavande. J. was a party) after referring to judgments in the cases of Lenocio Raicar and Mohan Dabhale (supra) and other judgments relied upon on behalf of the petitioner, held that case was made out by the petitioner under Section 12(1)(d) read with Section 55(4) of the Act against respondent No. 2 and consequently respondent No. 2 stood disqualified as a member of panchayat and declared his seat to be vacated. The Division Bench held that purpose to enact Section 12(1) (d) and Section 55(4) is to ensure that no member of panchayat takes part in discussion or votes in any resolution in which he has any pecuniary interest. The Division Bench referred to the Judgment in the case of St. Estevam Village Development and Protection Samittee and others v. Smt. Seema Rohidas Narvekar and others, reported in 2010 (2) Goa LR 109. in which it was held that element of mensrea would have no bearing in deciding d the matter of disqualification in terms of Section 12(1)(d) read with Section 55 of the Act. 12. We shall now deal with the judgments relied upon by Mr. Coutinho, learned counsel appearing for respondent No.3. In the case of Gulam Yasin Khan (supra) the appellant was disqualified to contest as a member of Municipal committee at Malkapur on the ground that his son Khalidad Khan was a Moharir on Octroi Naka employed by the Municipal Committee and consequently the appellant was disqualified for standing for election in terms of Section 15(1) of Central Provinces & Berar Municipalities Act. 1922. It was the case of the appellant that his son was not staying with him and had no connection with him whatsoever. The High Court had allowed the petition preferred against the order passed by Supervising Officer overruling the objection raised on behalf of respondent No. 1 to the candidature of the appellant and held that respondent No. 1 was duly elected since appellant and respondent No.1 were only two candidates. The High Court had allowed the petition preferred against the order passed by Supervising Officer overruling the objection raised on behalf of respondent No. 1 to the candidature of the appellant and held that respondent No. 1 was duly elected since appellant and respondent No.1 were only two candidates. The Apex Court took note of the fact that admittedly appellant had three adult sons including Khalidad Khan who was living in the same house and mess was separate and they had no share in each others income and there was separate living arrangement in the house. In these factual background the Apex Court held that mere relationship with appellant No.1 who was employee of Municipal Committee would not be sufficient to hold that the appellant had interest, direct or indirect, in the employment under the Municipal Committee. Consequently, the Apex Court allowed the appeal by setting aside the order passed by the High Court. In the case of Zelia M. Xavier Fernandes E. Gonsalves (supra), the appellant was declared elected as a member of Ria Village Panchayat from ward No.9. The Village Panchayat of Ria invited bids for collection of market fees within its jurisdiction. Along with others Xavier Fernandes, husband of appellant submitted the bid. The bid of husband of appellant was accepted, being the highest. In this factual background, respondent No. 1 thereafter made an application to State Election Commission seeking disqualification of the appellant in terms of Section 10(f) of the Act. The Commissioner disqualified the appellant on the ground that she had directly or indirectly a share in the monetary contract given to respondent No. 1 by the appellant. Writ Petition preferred by the appellant against the order of Commissioner was also dismissed by this Court. In Special Leave Petition before the Apex Court, the Apex Court referred to Articles 1098 and 1108 of the Portuguese Civil code. 1960 which was applicable in Goa and held that in view of the communion of assets between the spouses in terms of Article 1108 and in view of Section 5(A) of the Income Tax Act, the appellant was rightly disqualified since the appellant had indirect share and held that in any case in view of the contract awarded to her husband by the panchayat, the profits shall be apportioned equally between her and her husband. Consequently, the Apex Court dismissed the Special Leave Petition preferred by the appellant. Consequently, the Apex Court dismissed the Special Leave Petition preferred by the appellant. 13. In the present case, there is no serious dispute that respondent No.3 participated in the meeting held on 12th November, 2012 in which NOC for running milk booth made by Russel A. Pereira, son of respondent No. 3 was considered and granted. There is also no dispute that minutes of the meeting held on 12th November. 2012 were confirmed in the meeting held on 22nd November. 2012 in which respondent No. 3 was present. There is also no dispute that Russel A. Pereira, son of respondent No. 3 to whom NOC was granted by the panchayat was aged less than 18 years on the date of passing of the resolution by the panchayat. 14. In view of above admitted facts, we find it extremely difficult to accept the submission of Mr. Coutinho that respondent No. 3 is not disqualified in terms of Section 12(1) (d) read with Section 55(4) of the Act. Russel A. Pereira, being a minor could not have entered into any contract with the panchayat and the same could have been done only through his guardian. Considering the fact that respondent No. 3 is his father, it is only respondent No. 3 who could protect the interest of his son Russel A. Pereira as his guardian. That apart, Russel A. Pereira being son of respondent No.3, respondent No.3 ought not to have participated in the meeting held to consider the grant of NOC to his son for running a milk booth. It is difficult for us to accept the submission of Mr. Coutinho that respondent No.3 had no pecuniary interest in the resolution taken by respondent No. 2 granting NOC to his son for operating milk booth. As held in the case of Seema Narvekar (supra), the question of mensrea would have no bearing in deciding the matter of disqualification under the Act. Participation of respondent No.3 in the resolution had assisted his son Russel A. Pereira in securing NOC in his favour and therefore, ratio of the judgment in the case of Lenocio Raicar (supra), is squarely attracted. Merely, because the milk booth could not be set up since Tourism Department did not grant NOC, the same is not sufficient to hold that disqualification in terms of Section 12(1) (d) read with Section 55(4) of the Act is not attracted. Merely, because the milk booth could not be set up since Tourism Department did not grant NOC, the same is not sufficient to hold that disqualification in terms of Section 12(1) (d) read with Section 55(4) of the Act is not attracted. It is the participation of respondent No.3 in the discussion of any question in which he had any pecuniary interest which incurs disqualification under the Act. 15. The purpose of enacting Section 12(1) (d) read with Section 55(4) of the Act is to ensure purity and fairness in the proceedings, working and dealings of the village panchayat by ensuring that there is no misuse of the fiduciary, capacity occupied by its members and these provisions are based on public policy. We are in respectful agreement in the view taken by the Division Bench in the case of Raicar (supra) in which the Division Bench held that even if agreement was not subsequently implemented for any reason. the same would d make no difference and the same would be irrelevant for the purpose of Section 12(1)(d) read with Section 55(4) of the Act. 16. In so far as the judgment relied upon by Mr. Coutinho. in the case of Gulam Yasin Khan (supra) is concerned having regard to the factual background and also to the fact that the matter was pertaining to disqualification to contest as member of municipal committee in terms of Section 15(1) of Central Provinces & Berar Municipalities Act, 1922, in our view the ratio of the said judgment would not advance the case of respondent No.3. It is not brought to our notice that Section 15(1) of the Central Provinces & Berar Municipalities Act. 1922 are similar to Section 12(1) (d) read with Section 55(4) of the Act. Therefore, in our view the said judgment does not advance the case of respondent No.3. In so far as judgment in the case of Zelia Gonsalves (supra) is concerned, the same also does not support the contentions advanced on behalf of respondent No.3. 17. In view of the above discussion, we are of the considered opinion that case has been made out by the petitioner under Section 12(1) (d) read with Section 55(4) of the Act against the respondent No. 3. Respondent No.3, therefore stands disqualified as a member of Village Panchayat of Colva. 17. In view of the above discussion, we are of the considered opinion that case has been made out by the petitioner under Section 12(1) (d) read with Section 55(4) of the Act against the respondent No. 3. Respondent No.3, therefore stands disqualified as a member of Village Panchayat of Colva. Consequently, his seat shall be deemed to have been vacated in terms of Section 12(1) (d) read with Section 55(4) of the Act. 18. Rule is made absolute in the aforesaid terms with costs quantified at Rs. 5000/- (Rupees five thousand only) to be paid by respondent No. 3 to the petitioner. 19. Writ Petition stands disposed of.