Mohan Vithal Dabhale vs SantoshVasant Morajkar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Bom) 518

2011(4) ALLMR 559
IN THE HIGH COURTOF JUDICATURE AT BOMBAY (PANAJI BENCH)
S. C. DHARMADHIKARI & F. M. REISM, JJ.
Mr. Mohan Vithal Dabhale – Appellant
Vs.
Mr. SantoshVasant Morajkar & Ors. – Respondent
Writ Petition No.323 of 2010
Decided on: 3rd May, 2011.

Advocates Appeared:
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 Respondents No.3, 4 and 6.

Headnote:Goa Panchayat Raj Act, 1994 - Sections 12(1)(d) and 55-Disqua-lification of a member-Pecuniary interest of member-Member restrained from taking part in meetings for private interest-Wife of a member/respondent sought NOC to open a restaurant-Respondent attended meeting wherein NOC granted-Respondent, at one stage stated that he left meeting hall when issue of NOC being considered-At other stage he stated that he attended meeting but not taken part in description of NOC-Held-Respondent taken part in discussion on question of ground of NOC to his wife-Ingredients of Section 55(4) of Act satisfied-Respondent had a direct pecuniary interest-Stands disqualified.-Evidence on record unmistakably shows that the respondent No. 1 took part in the discussion, on the question in respect of which resolution No. 5(3) was passed. Court have noticed the factual undisputed position. It is clear that the first respondent was present during the entire meeting and he participated in the proceedings. It was first respondent case that he left the meeting hall when the question of grant of NOC to his wife was being discussed. Thus, his stand is that he did not take any part in the discussion. Once this is the stand taken by him, then Mr. Pangam, cannot argue to the contrary. Accepting such an argument would be ignoring the overwhelming evidence of record and allowing respondent No. 1 to change his stand frequently. The cross-examination of the Secretary of the Village Panchayat by respondent No. 1 reveals that in answer to a specific question on this point, the Secretary replied that all the members present participated in the said discussion. Thus, it is too late in the day to argue now that the respondent No. 1 does not incur any disqualification.
The version of the first respondent in his affidavit in evidence that he had not participated in the discussion in the meeting held on 28.12.2007. Para 9 of this affidavit in evidence very clearly states that his stand is as aforesaid. However, in his cross-examination the first respondent could not explain a crucial omission. In the cross-examination, the first respondent was asked about the omission in the affidavit in reply filed in writ petition and the statement made in para in of his affidavit in evidence. He could not explain as to why there is a dichotomy and contradiction in his version. This is sufficient to hold that the first respondent had taken part in the discussion on the subject/question of grant of NOC to his wife and therefore the ingredients of Section 55(4) are satisfied. It is not argument that the first respondent had no pecuniary interest in the question pertaining to grant of NOC to his wife to start business of a hotel/restaurant. Therefore, in this question, respondent No. 1 had a direct pecuniary interest. Thus, he stands disqualified. A faint attempt is then made by Mr Pangem, to suggest that the Division Bench orders and Judgments relied upon by the petitioner do not take note of the distinction between "taking part in the proceeding" and "taking part in the discus-sion". Therefore, to the extent that they hold that taking part in the proceeding means taking part in the discussion, they do not lay down the correct law.

JUDGMENT :

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 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 in-charge of implementation of the provisions of Go a 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, 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 10.30 a.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 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 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. Ther

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2011 Supreme(Bom) 518

2011(4) ALLMR 559IN THE HIGH COURTOF JUDICATURE AT BOMBAY (PANAJI BENCH)S. C. DHARMADHIKARI & F. M. REISM, JJ.Mr. Mohan Vithal Dabhale – Appellant Vs.Mr. SantoshVasant Morajkar & Ors. – Respondent Writ Petition No.323 of 2010 Decided on: 3rd May, 2011.

Cases Referred (1)

Judicial Analysis

2011(4) ALLMR 559
IN THE HIGH COURTOF JUDICATURE AT BOMBAY (PANAJI BENCH)
S. C. DHARMADHIKARI & F. M. REISM, JJ.
Mr. Mohan Vithal Dabhale – Appellant
Vs.
Mr. SantoshVasant Morajkar & Ors. – Respondent
Writ Petition No.323 of 2010
Decided on: 3rd May, 2011.