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2014 Supreme(Bom) 492
In the High Court of Bombay at Goa
ROSHAN DALVI & F.M. REIS, JJ.
Dyaneshwar Narso Naik
Versus
State of Goa Through Chief Secretary & Others
Writ Petition No. 541 of 2013
Decided on: 26-02-2014
For the Petitioner:Galileo Francisco Teles, Advocate.
For the Respondents:R1, A.N.S. Nadkarni, Advocate General with K. Noorani, Addl. Government Advocate, R2, Prema Matkar, R3, D. Pangam, Advocates.
The judgment establishes the principle that a member of a Panchayat can be disqualified for participating in discussions or voting on matters in which they have a pecuniary interest, as per the statutory provisions and legal principles.
Headnote:
quo-warranto - Disqualification of Village Panchayat member - Goa Panchayat Raj Act, 1994, Section 12(1)(d) r.w. Section 55(4)
Fact of the Case:
The petitioner sought a writ of quo-warranto to discontinue respondent No.3's functioning as a member of the Village Panchayat and a declaration that she has been disqualified under the Goa Panchayat Raj Act, 1994 due to participating in a meeting concerning the renewal of her husband's construction license, in which she had a pecuniary interest.
Finding of the Court:
The court found that respondent No.3 had participated in the discussion relating to the renewal of the construction license to her husband, acting in contravention of Section 55(4) of the Act, and therefore vacated her seat as a member of the Village Panchayat.
Issues: The key issue was whether respondent No.3 had participated in the discussion and voting concerning the renewal of her husband's construction license, despite having a pecuniary interest in the matter.
Ratio Decidendi: The court relied on the statutory requirements for maintaining minutes of the meeting, the presumption of regular performance of official acts, and the principle of communion of acquired properties between spouses under the Portuguese Civil Code, 1860, to determine respondent No.3's disqualification as a member of the Village Panchayat.
Final Decision: The court granted the writ of quo-warranto and declared respondent No.3 disqualified as a member of the Village Panchayat.
Mrs. Roshan Dalvi, J.
1. Rule. Made returnable forthwith.
2. The petitioner has sought a writ of quo-warranto directing respondent No.3 to discontinue functioning as a member of respondent No.2 Village Panchayat and for a declaration that she has been disqualified to be such member and her office has become vacant under the provisions of Section 12(1)(d) r.w. Section 55(4) of the Goa Panchayat Raj Act, 1994.
3. Respondent No.3 is the elected member of the Village Panchatyat. She is stated to have participated in the meeting concerning a matter in which she has pecuniary interest. That matter was the renewal of construction licence issued to her husband. The licence was initially issued on 10th March, 2010. It would expire on 9th March, 2013. The meeting with regard to the renewal of the licence was held on 16th March, 2013 when the licence had already expired. It was resolved to grant the licence to her husband in the meeting dated 16th March, 2013. The renewal licence was actually granted on 21st March, 2013 after the initial licence had expired. It has been renewed from 10th March, 2013 to 9th March, 2014.
4. It is not disputed that the licence was issued to the husband of respondent No.3. It is also not disputed that it has been renewed as stated above.
5. It is settled in the case of Zelia M. Xavier Fernandes E. Gonsalves Vs. Joana Rodrigues & Ors (2012) 3 SCC 188 by the Supreme Court that in view of the principle of communion of acquired properties between spouses under Articles 1098 and 1108 of the Portuguese Civil Code, 1860 a wife would have pecuniary interest in the properties of her husband as the properties would be apportioned equally between them. Consequently there is not much dispute that respondent No.3 would have pecuniary interest in the aforesaid resolution.
6. The only point which is to be considered is whether the respondent No.3 participated and/or voted in the said resolution.
7. Under section 12(1)(d) a member of the Village Panchayat would vacate his/her seat as such member if he/she votes or takes part in discussion in contravention of Section 55(4) of the Act.
8. Under Section 55(4) no member of the Village Panchayat shall vote or take part in the discussion of, any question coming up for consideration at the meeting of the Panchayat if he/she has any pecuniary interest therein.
9. It would have to be seen whether respondent No.3 voted or took part in the discussion of the question relating to the renewal of the construction licence of her husband.
10. It may be mentioned that under Section 57 of the Act minutes are required to be kept of the names of the members and of the officers present and of the proceedings at each meeting of Panchayat. Under the said section if any member present at the meeting so desires the names of the members voting respectively for and against the resolution would be mentioned. Such minutes are to be kept in the book provided for the purpose and signed by the Sarpanch or whoever else who presided at such meeting.
11. The minutes of the meeting would be presumptive evidence of what transpired at that meeting. Of course, it would be a rebuttable presumption. It would have to be rebutted by respondent No.3. Until it is rebutted the minutes recorded in the normal course of the business of the Village Panchayat would be presumed to be correctly recorded as per the general law of meetings which Village Panchayats, including respondent No.2 Village Panchayat would implicitly accept by virtue of maintaining the minute book itself.
12. It may be mentioned that respondent No.3 has orally denied that she voted or participated in any discussion relating to the issue of renewal of construction licence to her husband. The petitioner has produced photocopies of the minutes of the meeting of the relevant meeting held on 16th March, 2013 and the subsequent meeting confirming what transpired on that date held on 30th March, 2013. The minutes show the attendance of respondent No.3 w
