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2011 Supreme(Bom) 1127
2011 (6) ALLMR 746
In the High Court of Bombay at Goa
A.P. LAVANDE & R.P. SONDURBALDOTA
Mansoor Mulla
Versus
State of Goa by the Secretariat (Panchayat) & Others
WRIT PETITION NO. 224 of 2011
Decided On : 22-09-2011
For the Petitioner:A.F. Diniz, Advocate.
For the Respondents:R1, M. Salkar, Government Advocate, R2, S.D. Lotlikar, Senior Advocate with H. Kankonkar, Advocate.
Headnote:Goa Panchayat Raj Act, 1994 - Sections 12(1)(d), 55(4)-Member of a Panchayat-Disqualification-On ground of pecuniary interest-Pecuniary interest of a Member of a Panchayat, disqualifies him, if he votes or takes part in discussion of any question which comes up for consideration.-Having regard to the provisions of Section 12(1)(d) and Section 55(4) of the Act, Court is of the considered view that if grant of such a permission comes up for consideration in the meeting of the Panchayat in which the Member of the Panchayat has any pecuniary interest, the law injuncts the Member of the Panchayat from taking part in the discussion and/or from voting. In the present case, perusal of the minutes of the meetings, held on 29th May and 16th June, 2009 clearly established beyond any semblance of doubt that respondent No. 2 took part in the discussion regarding grant of licence/permission to respondent No. 2 and, therefore, in Court’s considered view, Section 55(4) of the Act is clearly attracted since respondent No. 2 had pecuniary interest in the item regarding grant of licence/permission in respect of his building. Respondent No. 2 could not have presided over the meeting, nor could have taken part in the discussion, when the item came up for consideration. Unable to accept the submission that mere pecuniary interest of a Member of a Panchayat does not disqualify him if he votes or takes part in the discussion of any question which comes up for consideration and stands disqualified only if the public interest suffers. Such an interpretation runs counter to Section 12(1)(d) and 55(4) of the Act.
Constitution of India - Article 226-Writ petition-Delay and laches-Alleged delay not caused any prejudice to respondent-Petitioner not guilty of laches-Writ petition not liable to be dismissed on ground of unexplained delay and laches on part of petitioner.-The meeting in which respondent No. 2 participated was held on 29th May, 2009 and the present writ petition has been filed on 11th April, 2011. Therefore, it cannot be said that the petitioners guilty of such laches as would then disentitle him from seeking any relief under Article 226 of the Constitution of India. Moreover, the alleged delay has not caused any prejudice to respondent No. 2 and, therefore, not inclined to dismiss the writ petition on the ground of unexplained delay and laches on the part of the petitioner.
A.P. LAVANDE, J.
1. Heard learned Counsel for the parties.
2. The parties were put to notice that the petition would be disposed of finally at the admission stage. Hence Rule. Rule is made returnable forthwith.
3. By this writ petition, the petitioner seeks the following reliefs:
“(a) For a declaration that the seat of the respondent no.2 as member (panch) of the Village Panchayat of Curti Khandepar has become vacant.
(b) For a writ of quo warranto or a writ in the nature of quo warranto, or any other appropriate writ direction or order under Article 226 of the Constitution of India calling upon the respondents to explain under what law the respondent no.2 continues to be a member of the Village Panchayat of Curti Khandepar and on considering the same declaring the respondent no.2 an usurper in office as member of the Village Panchayat of Curti-Khandepar, and to forthwith vacate the same.
(c) For a writ of mandamus or a writ in the nature of a mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India commanding the Respondent no.2 to forbear from functioning or acting as a member (panch) of the Village Panchayat of Curti-Khandepar in any manner whatsoever and further directing the Respondent no.3 to forthwith revoke, and cancel the Construction Licence bearing No.41/09-10 dated 14/11/09.
(d) Pending the hearing and final disposal of the Petition therefore, this Hon'ble Court should be pleased to restrain the respondent no.2 from functioning or acting as member (panch) of the Village Panchayat of Curti-Khandepar, or taking part or voting at a meeting of the Village Panchayat of Curti-Khandepar.
(e) For ex-parte ad interim reliefs in terms of prayer (d) above;
(f) For costs; and
(g) For such further and other reliefs as the nature and circumstances of the case may require.”
4. The petitioner claims to be a citizen of India and permanent resident of Curti, Ponda, Goa and that he is a voter from Ward No.9 of the Village Panchayat of Curti-Khandepar, Goa. Respondent No.2 was elected as a Member of the Village Panchayat from Ward No.9. For sometime, respondent No.2 was the Chairman (Sarpanch) of the Panchayat and he continues to be a Member of the Panchayat.
5. It is the case of the Petitioner that by Resolution No. 2/6 taken at the meeting of the Panchayat held on 29th May, 2009, the Panchayat resolved to issue a construction licence to respondent No.2 as per the plan (as revised) for construction of a residential building in Survey No.59/0 at 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. The resolution was unanimous and respondent No. 2 also voted for the said resolution. Pursuant to the said resolution, construction licence No. 41/09-10 dated 4.11.2009 was issued to respondent No.2. A copy of the said construction licence (Annexure P3) has been produced by the petitioner. It is further case of the petitioner that respondent No. 2 entered into a development agreement dated 5.3.2009, with a builder to develop the plot in the said property for which the construction licence was issued. The Petitioner has placed on record copies of the development agreement along with corrigendum and the Panchayat letter dated 5.5.2010, Form I and XIV, and House Tax Receipt, etc. ( Annexure P4 Colly). According to the Petitioner, respondent no. 2 stands disqualified, on account of his act of taking part in the discussion, proposing the said resolution and voting for the same. It is further the case of the petitioner that the seat of respondent No. 2 in the Panchayat is deemed to have become vacant in terms of Section 12(1) (d), read with Section 55(4) of the Goa Panchayat Raj Act, 1994 ( “the Act” for short).
6. Respondent No. 2 filed an affidavit-in-reply dated 18th July, 2011, inter alia, contending that the Petitioner h
