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2010 Supreme(Bom) 565
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE S.J. VAZIFDAR & THE HONOURABLE MR. JUSTICE U.D. SALVI
WRIT PETITION NO. 464 OF 2008
Decided on : 13-04-2010
Shri Lenocio Raicar
Versus
Shri Martinho Rocha & Others
For the Respondents:R1, G. Teles, Advocate. R2 & R4, M. Salkar, Addl. Govt. Advocate.
Headnote:Goa Panchayat Raj Act, 1994 - Sections 12(1)(d) and 55 - Disqualification - Election petition filed by petitioner under Section 12(d) of Act - Dismissal by Election Commission for want of jurisdiction - Challenged - Contention, respondent-1 entered into leave and licence agreement with Cellular Company - Agreement had pecuniary interest - Held - To construct tower, permission required from respondent-3, Village Panchayat - Respondent-1, Sarpanch materially interested in grant of permission to implement agreement and to derive benefit thereunder - Interest clearly pecuniary - Respondent-1 had direct pecuniary interest in resolution being passed in meeting - Pecuniary interest not necessarily required to be discussed by Village Panchayat by very resolution to attract provisions of Sections 12 and 55 of Act - Petition allowed. - The submission is not well founded. The agreement dated 18.8.2007 between respondent No. 1 and Idea Cellular Ltd. itself certainly created a pecuniary interest in favour of respondent No. 1. The receipt of this pecuniary interest i.e. the consideration under the agreement was to commence upon the commencement of the construction work as stipulated in Clause 3.2 thereof. To construct the tower, permission was required from respondent No. 3, the Village Panchayat. Respondent No. 1 was, therefore, materially and substantially interested in the permission being granted in order to implement the said agreement dated 18.8.2007 and to derive the benefit thereunder. This interest was clearly pecuniary. The permission was necessary to advance and assist the implementation of the agreement and was accordingly in aid of the first respondent’s pecuniary interest which is manifest therein. It was submitted that the pecuniary interest must be direct and not indirect. Even assuming the submission to be well founded, in the present case, the first respondent had a direct pecuniary interest in the resolution being passed in the meeting.
To attract the provisions of Sections 12 and 55, it is not necessary that the pecuniary interest is discussed by the Village Panchayat or disbursed by the very resolution. Nor is it necessary for these provisions to apply that the question discussed pertains to or involves the disbursement or accrual of the pecuniary interest. It is sufficient if the subject-matter of the question 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 connection between the question discussed or the resolution passed on the one hand and the pecuniary interest on the other, must be proximate and real, not fanciful or too remote. It would depend upon the facts of each case. One test would be to examine whether the member would be able to or capable of realizing the pecuniary interest if an adverse decision on the question is rendered by the Village Panchayat.
In the circumstances, the writ petition is allowed. The rule is made absolute in terms of prayers (A) and (B). There shall be no order as to costs. The operation of this order is stayed upto 14th May, 2010, in so far as it declares the first respondent’s seat to have become vacant. However, respondent No. 1 shall not, during the operation of this stay, participate in the affairs or business of respondent No. 3, the Village Panchayat, in any manner whatsoever.
S.J. VAZIFDAR, J.
Respondents No.2, 3 and 4 are the State of Goa, the Village Panchayat of Davorlim-Dicarpale and the Director of Panchayats, respectively.
2. The petitioner has sought a declaration that respondent No.1 is deemed to be disqualified under Section 12(1)(d) of the Goa Panchayat Raj Act, 1994 (“the said Act” for short), and the seat has, therefore, become vacant. The petitioner has also sought a writ of mandamus, directing respondent No.1 to forbear from functioning or acting as a Member/Panch and Sarpanch of respondent No.3-Village Panchayat of Davorlim-Dicarpale.
3. Sections 12(1)(d) and 55(4) of the said Act read as under:
“12. Vacation of a seat by members – (1) If a member of a Panchayat -
(a) ...
(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.
55. Quorum and Procedure - (1) ...
(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.”
4. The facts are not disputed.
Respondent No.1 is the owner of a plot of land, having acquired the same by a Deed of Sale dated 16.12.1996. Respondent No.1 entered into a Leave and Licence Agreement dated 18.8.2007 with Idea Cellular Ltd., by which respondent No.1 granted a licence to Idea Cellular Ltd., in respect of the land, for the purpose of erecting tower and installing equipments in connection with cellular mobile telephone network and services. The agreement is for a period of 15 years. Clauses 1 and 3 of the agreement read as under:
“1. LICENSE:
The Licensor hereby grants a license to the Licensee in respect of the licensed Land and the Licensee hereby accepts the same for the purpose to erect, install, operate and maintain the Equipments described in Schedule III written hereunder and such other equipments not mentioned in the said schedule, but which will be required from time to time by the Licensee to effectively carry on their operations on the said Licensed Land, alongwith absolute easement rights and all appurtenances attached thereto, along with right of ingress and egress through and/or from the said property upto the license land, on all days and at any time during the term of this Agreement. The Licensor further grants right of way/permission to the Licensee to lay power/optical fiber duct/cable through/on the said property up to the Licensed Land. The schedules referred herein under will constitute internal part of this Agreement.
3. COMPENSATION:
3.1 In consideration of the license fees hereby reserved and of the terms and conditions, covenants herein contained and on the part of the licensee to be observed and performed by the licensee, the licensor do hereby grant unfretted license unto all that peace and parcel of the said premises/land/rooftop, license premises more particularly described in the II Schedule written hereunder, and to hold, to use & to occupy the Licensed premises for the term of Fifteen years commencing from date of agreement, subject to earlier determination/termination of this license granted and as herein under provided and paying thereof the monthly license fees of Rs.7000/- (Rupees Seven Thousand only) with an escalation of 15% every five years.
3.2 The first of such monthly License fees is to be paid by the Licensee to the licensor from the date of commencement of the construction work of licensee only. The subsequent license fees to be paid on or before 10th day of every succeeding month. It is specifically agreed by the Licensor that period from the date of the agreement till the date of commencement of the CONSTRUCTION of Li
