REGD. · 5 I

PAHAJI, 22HD SEPTEMBER, 1994' {BHADRA 31, 1916} SERIES II No. 25 OFFICIAL GAZETTE .GOVERNMENT OF GOA

E!XT ~ 1\0 ft [) IN" NY No.2

4. 8hri V;ictor Gonsalves, MLA Petitioner GOVERNMENT OF GOA viS. LE61SLATURESECRfTARIAT Shri Mauvin Godinho, MLA Respondent Referenc~ No. 5/92 5. Shri Victor Gonsalves, MLA Petitioner Notification vis. Shri , MLA Respondent No. LA/A/2299/1994 Reference No. 6/92 The following decision dated llIth September, lOO4ot the ~. Shri Victor GODSalve~, MLA Petitioner Speaker of Legislative Assembly'of. State of Goa given Ul).!l.er vis. . . Rule 8(1) of.the Members of ~ Legislative Assembly (DUt­ Smt. Farrel Furu;.do e Gracia&, MLA Respondent .qualification on grounds of _Defection) Rules. 1986 framed under the Tenth Schedule of the Constitution of India iff This Common order will dispose off six. sep'arate Petitions hel'J'by ilotif\ed and published. filed by the petitioner against' the respondents· a& the facts, circumstanceS and issues involved in all the six cases are identical. legislatiYe Assembly of Ibe Slale of G08 1. The Petitioner has filed six separate papplications against Bulletin Part· II the respondentS under Article 191(2) read with the ~_enth Schedule of the Constitution of 1~dia praying that the Res­ pondents pe decl~d as cUsqu~ed for -being Members of Thwrsd(,ty, the 15th Septern})er, 1994/25, the· Goa Legislative Assern~ly iIi view. of the_ fact th~t . Bhadra/Saka -1916, Dr. Luis ',Proto '_Barbo$a ,sta,nds disqualified as a member of the House,: consequently, the Respondents 'also 'stand The following decision dated 15th.' September, 1994 of 86. disqualified under para 2 -o~ Ute -Tenth Schedule of the the spea,ker of Legislative Assembly of State of G9a Constitution of India for.. vQluntarily' having given up his given 1,lnder Rule 8(2} of the Members of Goa Legisl~tive 'membership "'of the after being AJ:!se_~1!ly (Disqualification on grounds of Defection) elected to the House on the ticket of the Indian National ~U1~sJ t98~ framed under the, ~enth Schedule o~ tlle Congress. Coiist.itutio~ of India is hereby notified and publIshed. 2. The Respondents were called upon to file their com­ "In the matter of petition filed by ments within 7. daya in accordance with the provisioll$ of 8hri. Victor Gonsalves, M. L. A. and Rule 7 of the Members of the, against 6 Members of t~ Goa Legis~ (Disqualification on grDUl).da of DefeCtion) Rules 1986. lative Assembly. The Respondents vide' letter dated 13-1-1992 requested three months time to file thei!" comments but they are granted CQMMON QRDER time upto 12th 'March, 1992' to file their com:ments" Reference No. 1/92 3. On 24th March, 1990 all the al,)ove re'spondents al(;mg­ Petitioner 1.' Shri, vtcitor" . vis. qOnsalv~s, MLA with Dr. Luis Proto -Barbosa holding the office of the then. Speaker of the Goa Legislative .N;sembly submitted a letter Shri Luis Ale" Cardoz,' MLA Respondent to the President of the Goa Pradesh Congress (1) O;nnmittee at Panaji tendering the re,sPective resignation~ from the Refex:ence No.2/92 primary ,membership of the Indian National Congress (I) 2. Shri Victor Gonsalves" MLA Petitioner Party. . vis. '

Sl:\ri Somnath, Zuwarker t MLA Respondent 4. The respondents also addressed letter to the theJl Go­ vernor of Goa - Shri Khursheed Alam Khan stating therein Reference No. 3/92 that thE:il{ have withdrawn. their support to Shri p. R. Rane 3. Shri Victor Gonsalves, MLA Petitioner as the Leader of the· House and Chief Minister of Goa. The . vis. Governor of Goa vide his letter dated 24-03-90 informed 'Shri J. ,B. Gonsalves, MLA Respondent Shri P. R. Rap,e stating that the above representatives -have wit,hdrawn their support to him as the Leader of the House Reference 'N9- 4/92 and Chie~ Minister of Goa and' th,ey also corifirmed this fact 324 OFFICIAL GAZE'M'E - GOVT. OF GOA SERIES II No; 25 (EXTRAORDINARY No.2) 22ND. SEPTEMBER, 1994

,in--'writing after . personally meeting him on that day and- 7 , claim _of the, respondents that there was.a split in Congress. members have also formed a Goa -people's Party with Dr. Luis (I) Legislative ~arty constituted a Group representing a Proto Barbosa as the President after resigning fro~ primary faction which had arisen as a reSult of the said split in membership of the ;rndian National Congress (I) Party.' Congress (I) Legislative Party constituted a Graup repre­ se~ting a factian which had arisen' as a result of the' said 5. On 25th March, 1990 Shri' Eduardo Faleiro who was the split that the said group consists of not less than 1/Srd of P.resident of the Goa Pradesh .congress (I) Committee ac­ the Legisl,ature Party. cepted the resignation of aU the seven membe:rs. Both the parties filed thetr propased issues on '27-03-92 6. On 27th March, 1990 Shri , MLA. out of which the follawjng issues were treated as the preli- eleeted from Navelim Constituency filed a petition for dis­ min~ry issues: . qualification of Dr. L. p. Barb'bsa. The said petition was referred' to Dr. K. G. Jalmi, MLA, member elected in terms 1. Whether the respondent proves that the -petition is liable of proviso to para 6(-1) of the Tenth Schedule of the Cons­ to be dismissed in limine for laches delay and limitation . as titution of India. Dr. K. G. Jalmi by his judgement- and order the petition is filed after, almost twa years from the dat~ of dated 14-12-90 declared that Dr. L. P. 'Barbosa had become the al~eged cause of action. subject to- disqualification under para 5' of the Tenth- Sche­ dule of the Constitution of India. . 2. vVhether the respondent proves' that the .petition is bar­ red, ?y re~judicata or prinCiples analogous theretO', in that a 7. 'The ~ontention cif the petitioner is that on -24-()3-90" or petItIo.n an the 'same alleged cause of action filed by Shri any time thereafter, there has not been. any split in the Dommck Fernandes, Dr. Wilfred D'Souza Shri Victor Gonsal­ Indian National Congress and -the fact has ):)een confirmed ves (the petitioner) and others, MLAs filed on 28~,{)3-90 was by the then General .Secretary' of _ ~CC, Shri H. K. 'L. dismissed by the then Speaker, Shri SUrendra V. Sirsat on Bhagat in the'letter dated 25-'04-90 addressed -to Dr. Wilfred 13-12-90. . D'Souza the then Leader of, Indian National Congress- in the state Legislative Assembly. - ,S. What is the _effect or the __ withdrawal of writ'--'petitian N? 492 of 1990 filed by Dr Wilfred D'Sauza, Leader of the 8. One of -the Mfmi.bers of the state Legislative Assembly Congress (I) Legislature ~arty who had sought the res­ Shri Domnick Fernandes a-, candIdate set up by Indian .Na­ pondents's disqualification in the Supreme Court ori the same tianal Congress and elected from ,Curchorem Constituency alleged cause of action. "filed a petition against the 6'members name: Churchill Alema.o, Luis ,Alex cardoz, Somnath ZUarkar, .J. B. ,Ga~salyes, Ma\lvm' . ~. Whether the, petition fails not complYing with the pro­ Godinho and Farrel Furtado- under the provisian of the VlSIOns of the Goa Legislative Assenibly (Disqualification on Tenth Schedule of the cOnstitution' af India __ for their dis­ ~he gr@und of Defection) Rules, 1986,in that the petition and qmtlificatian. TIle said petition was~ rejected' by 'the then , Its annexures 'are not' verified in the manner' laid down in ,Bon'ble- Spealrer... of the Gaa Legislative Assembly on the the code of Civil Procedure, 1-908. technical ground~ that it, did_ not canfirm -with th_e rules of procedure under the Tenth Schedui~ o;f·-.·,the Constitution of , .V0He- arguing the issues the learned counsel Shri Agnel DmlZ an behalf of the respandents Shri Luis Alex Cardoz ~ndia. Somhath Zuwarka~,_. :'" ~:: __ Go~alves_ ;md Mauvin Godinho: ,,9. The: petitiop.er further states that .or. L, .P. Balbosa stated that accordmg to the / petitioner the cause af action al~ngwith ·6' _Members re~~W':~d ,~rom ~n~l;an N,;;tt~onal. co~g­ ar.?s: ot?- 24~{)3-99 a.n.4 the petition was filed .on ,4th January, ress after their electian and are not ~n~lt~ed to ,flaIm ~he '19:92; that' is'.alm.ost"atter two years. Fo~ this he- pointed nut benefit :of exemptiC!n under p~ovis? 3 6f ~e T,enth Schedule '~hl}_ .di.~q~alif~c~~~~ 'la~, and . qu6ted Judgeme~t of the HIgh of the Constitution of India -more so- after' Dr. L. ·P. Barbosa . 'COur~,''in this ~attex:, oli the -decision of the Speaker, Dr. has been disquaJified by the Member elected under the pro­ .Kashinat~ G. ~halmi _versu~ the-"Speaker~ 'vlso 'to' para 6'(1) -of the Tenth . Schedule of the Constitution ,of:, India' and, consequ.ently all the above re:;;pondents ,stLnds The :JU4ge-rnent T,eporteil in 1992- Bombay oaBe'Repor'teT. page 113. _ . :disqi.laUfied- under para; 2 _of" the Tenth, _,Schedule ,o~- the Cons­ titution ,of India ,for valuntarily,having given up th~~r m.el?}:­ bership of.. the Indian' NatiQnal Congress ;liter being elected Further he 'referred' to para~aph21 of tl;l,e Judgement for -,to': Ure:'House.: the purpose of issue NO.1. He stated that in the matter of representation in repr~entative body it is or" outmOst im­ , iO.'-All :the::ie~P9ri(j~n~s~-'riarriely'~:-r:.\li~ Alex ,6ardaZO,-M~U\~n' portance th~t t~e challenge must be prampt and forthwith, :"dQ(Jinho;,-":Soitmath:· Zuwa~kar,· --J. B. ,Gonsalves, ChurchIll Further: the rules" fr3JJled_ in the ExtraOrdinary Gazette' dated MemS!:o'o·and_ Farrel,: Furtada>;have- filed '-their -comments_ t.n 17th -July, 198-6 in exercise of pow~rs -canferred'by paragraph ·9_03C92;10C03-92;' 10-03-92, '10-03-92, 12-03-92 and 12-03~92 8 of the Tenth ,Schedule of the Constitution of India read respectively. ", All these 6' res,Pondents 'in! their' reply have with ~ection 14 A of the GOvernment of Union Territories 'stated that the- said petition has been 'filed_ after almost two Act, _,l:96S io_ the ~ules at every stage time·is specified. -He ;yeafS~fr6m ',the date' of.-alleged -Cause of actiah is barred by .further stated that whenever _the time is not prescribed the "laches. - ;matters ,are, to be dealt with by applying the doctrine of .'re~(~mablene~s. 'He,)aid the stres,s on the paragraph 8 of the 11. The respondents further stated that in their replies ~enth Schedule. tl)at th~ petition should be filed within rea­ sonable -time. There h'e quoted the' Judgement of .the Supre: that the petition fs 'barre.d by res-judicat~ or principle ana­ me, CQ~rt ,A!R 198"1 pa.ge, 15.7"1" and relied on paragraph 6 of ,)6g9us' thereto is th~t, the -pet,itio~ 'On', th~ same- cause, of the s!lld Judgement. He further submitted that when there 'action was filed :by· ~h~i 'Domllick Fe~apdes and others is' no-:peri()(~:,of limitation prescribed under the Limitation Act; fjJ.ed on 28:'03~90 iwas gis:r,;nissed '-by' the then Spea,ker.: Shrl Surendra'Sirsat on '13"':'12~90: The' cantention- of the.' respon­ the ~est of' reasonablel1:ess 'has ~, be adopted. He further stated that two Years p'eriod that the petitianer has taken d:ent ii5 that' therei:wa.:s :a: split in tp:e political party_-Congr_~ss to file this Disqualification petition is - not a reasonable , ("I) 'On 24·.:OS-90. _Al1-'_'t~e'_'6 respondent members of- the' Con­ gress_ (I) Legislative party 'constituted a Group representing period considering the -very scheme of the Act. of faction which ,:arose as a result af the said split and the ·saId- group cO'llsisted' of -not less than 1/3rd of the Members 'Vhlle arguing the issue No, 2 the learned counsel quoted :of the Congress :-co': -Legislature Party: and therefore the para 6 of the Tenth Schedule of the- Constitution, para 6 respondents are Iiot- disqu~li~ied- under ,13ub-para (1) ,- of para states, if any question arises as to whether a member of the '2' of the Tenth Schedule' of the Constitution on the grounds HOuS'e has become . subject' to disqi,ui;lification' Wlder· this ,:that, they have. voluntarily· given' up the membership of, their schedule the,.qq.estion shall be referred to the deGision of the -political party. ,'_The respondents have, den!ed that on chainnan, or as the case. :ry1.ay be the Speaker of- ~he House· ,*' " 24~()S-90,' or any time thereafter there has been split in the and- his decisi~n shall be :final. < In th~S' case the questian was Indian National Congress (I) and the ,respondents are ,_alsO' referred by way of petitian to the Speaker,' Mr. Surendra ,':not _aware and does, not 'that' Shri H. K. L., Bhagat wrote the . -Sirsat who was then the Speaker "and the Speaker has pro­ , alleged . .letter dated 25--04~90 to Dr. Wilfred D'Souza' and.­ .~ou~ced- his' Judgement rejecting the petition. ';in:~:ahy:" 'event the: purported letter. is irrelevant, seli serVing ,~and,::n{)t. binding';,on the respondents .. The' respondents, fllr­ The petitian was rejected: as 'the- same was riot properly _:;.th~:':denied" that,; the, -said members cannot .claim or 'invoke verified. According to counsel for the respondent the cause of , ~the' benefit' of',',~emption_ under .para 3- of the' Tentli Sche­ action, ' was on 24-0.3-90 agamst alllhese persons' ,before the ~du1Efiof 'the::-:Coristitution ,'Of India.-' They further denied, that ,Speaker, this same question was there, the same person had ~the' :-disqjuilificat~on:.,of '.Dr., L:_ P.··.Barbosa·,.can affc'ct I-he come before the '.Speaker and, Petition filed by the same person ~i 0FFICIALGAZETTE '- GOVT. OF GOA 325 SERIES II No; 25 ( EXTRAORDINARY No.2) 22ND SEPTEMBER, 1994

-. . ' , ,- on the same cause faction was rejected by the then Speaker On, the,. other hand Advocate Mario Bruto D'Costa" appeaw by rut ,order dated "13th DeCember. 1990. and the cause of action ring on behalf of the' petitioner ,;,submitted to note the con~ in that.petition was 24~03-90. tents_of Sec. 81.of the Representation of Peop1e's Act which was enacted in 1951 and was amended in 1956, 1961 and The_contention of the Counsel was. that. under paragraph 6 1966 _and he further 'quoted Sec. 81 which reads as follows: of Tenth Schedul.e '. the' question can be referred to Speaker only once and -the Speaker has pronouPced his, dec.isioJ;l .on the "An election petition 'calling in question any election may matter.', Paragraph _6 does" not contemplate contmuous refe­ be. pI.'esented on one or more _of the grounds specified ,in rence on the same matter. Reference is o~ce and the Speaker sub~sec. Sec; ,l'aD> and Sec. 101 of Representation of. People's' has. to decide and-· pronounce that the petition has be_en Act to the. HIgh Court py any candidate at such election or 'rejected.. The decision become,s final with the finaUty atta­ any election within 45 days from, but not earlier than the ched in paragraph '5 itself otherwise the- question ":,,,ould be date of election of the, returned candidate or if there' are that every time petition after -petition - would be filed and ,more than one returned candidates at the election and the it would gO' on the same cause of action ~nd that would bp. date,S of the election, and' _the dates of the election are d1ffe~ totally against the public policy a_nd -against the very para rent, the later of those, two' dates .. itself making the' decision of the Speaker final otherwise what is the point in making rules saying that the petition He ~urth~r submitted' that Sec. 81 and the point of time , shal1,be filed,immediately. at 'YhiCh the section was enacted _and was amended is this s~ctIon deals with the presentation of the petition challenM 'While SUbrrrltting the argtiments on issue No.' 3 of, t!\e glllg the elections and which lays down cleariy in specific oounsel for the petition stated that in the scheme of the term~ who is entitled to challenge, the election, namely a' rules framed under the _Tenth Schedule there is a party. candIdate or any electcT No. (1) ahd No. (2) is section 81 There is a leader of the party who is defined under t~e c~ea~ly lays down' a limit within which the petit:on can rule 2, therefore the rules recognise that there is a Leader be flied. ,.He fUrtherl contended that, the Tenth Schedule of of the Legislative Party and when a' disqualification petition , th~ Constitution which inserted_recently namely much attar is- filed it is mandatory that a notice has to be issued to 19~6, the Legislature v.,:as_ fully aware that in tbe represe;;'~ the leader under Rule 7 (3) (b). So that the Leader of th.: tation .Of. the Pe.opl,e'.s Act it prOVides for the procedure. of House can also make his comments. He further contendeu ~re~ent~ti~n of petitIon, it had clearly laid down a time that he filed a pet~tion in th-e Supr'eme' Court of India seeI:ing hml~ WIthIn whICh the petition had to be filed and tii~ disqualification of-'these respondents and subsequently wlth~ ~egIsI~ture was fully aware that it had provided' as' to Wh~ drew his petition. IS entltled to challenge an election, namely any candidate or ,.any elector. In the Tenth' Schedule the Legislature has On the point of issue No. 4 the (respondents) learned ~~lber~tely not, ma~e an? ~p~cific ,provision in this -regard. counsel contended that accordi!J.g to rule 6(~) and 6(7) every '1 -~e IS no such tIme lImit In the Tenth Schedule neither petition shall be signed by the petitioner and verified in t1111 s ere any such time limit under the rules which were 'manner laid down in'the Code of CiVil Procedure, 19{)8 (Cen~ , ellacte,d in the House. tra1 Act 5 of 1-908) for the verification of pleadings. Then under rule 6 (7) every annexures -to the petition shall also no'fhdee~~~~:~a~u~~r ;U~~itted that the r~spondents have be -signed by" the petitioner and verified in the s~me manner to be speCific dem'l 'f 'th and 9_ ~f the petIt.:on. There had as the petition bec:ause the annexures are all: integral part of Th' a 0 e allegatlOns made- in the petition ,the pet~tion under the 'Civil Procedure Co4e, ~~e verification . bit: ~p:~en.i;•. c:'avf3 leave !o. refer to the letters at EXhi: should either be true to: your knowledge, or 1t can be true ffe t Th or .ascertaInIng their true meaning- 'and­ to your information or it can be by way of legal submissivn. , :.rt c .'th e case of the respondents was that they' are 7 The very cause of action in ,Exhibit 'A' of annexure to the .oge er and therefore they constitute a ou Petiti.on. They do not rely 'On this ~peUtion. That is the cause t~lrd of, the Members of the particular Party ~ ufe ~: ~Z::~ of action. Resignation letter dated 24.;.3~1990 Exhibit 'B' of ;,rve bAssembly. So 'therefore the disqUalification ,cf ~es; annexure to the_ petition also nothing. None of the exhibits em ers was to be decided, in the light, of th . have been verified. In this connection, he relied on AIR t~a~is provided in, Tenth Schedule, namely _'that e if~~:i~~~~ " 1990 Bom,bay'Bench 1990" Page 90~A1R 1974 Supreme , 0 e Members of a party'_ resIgn from- the'membershi (JoVJrl; ,Page 1957. He also: pOinted out a Judgement from ~ ~a: party, they woul~ not incur ,disqualifications: Whe~ the, Administrative Tribunal on the very same p,oint, which e. a. e ,Of. the, ~peaker IS decided, the Member know -that was upheld In an ,electi,on petitipn. ~e-u:-e~ail:tmg ,s.x Mel1l:bers incur disqu8Jification otherWise th e p~15.er ,s fate IS not deCided" the question -Whether The: learned counsel· for the respondents Shri Radharao ey cons~tute, seven Or mOre cannot be decided - b th Speaker h!mse~f since .he defected alongwlth the- ~ y e Gracias appearing ~:m_ .. behalf' of Shri -Churchill Alemao ftnd sev~n. b""VUP 0 f Smt. Farrel Furtado e ,Gracias submitted that general law provides', for limitati.on for wherever -, there is a cause of action and redressal has to _'be obtained., within a' limIted ~e_ learned counsel' further submitted that six' Members ,per-iod. Tenth Schedule does not, pr~de'for the period,'\vith~ claIm -that they f~rm a group alongwith the Speaker, In view which the petition has to be' filed~, But thdt does not- mean ' of the fact..s of 1.'111S case, the .new Speaker cannot decide tha't that the petition can be filed at anytbne. It has to have they COnstitute .1/3rd because he cannot decIded on the- mat­ of same, finality somewhere that'is,_,why_ ~e Limit~Uon Act ter the old Speaker. was framed. He further., stated' that since the term of MLAs_ is 5' years' the limitfl.-tion' 'should"have been three The advocate for the peti-tioner stated further that if th months or six months at the most. group have resigned from the party under para (2) (a) o~ T~th, SchedUle, they are disqualified. The m.oment a person On the question of issue No.2, --the -counsel contended' that. resIgns ,from a party that person incurs disqualificati9n~ under the scheme of the Tenth., Schedule 'the cause of action . accrues to a poiitical party it does ~no't: accrue to an indivi~ Advocate D'COS:ta contended that the issue when the' Ques­ , QuaIl" he pOinte.d: out the case~ The same -Members including tion depends upon the deCision of one, namely, the Speaker the: Leader .of tre Congress _Legislative -'Pact.y made a, petiM the. same cannot be raised. He cannot be tagged to the reM tion and it wasidismissed and:ollce,;'it'is'dtsmlssed no other man:1ng MLAs. His disqualification has to. be decided by. member of that !p:uty ,can' file a p~titian~, ,The party through speCial proceedings:. So only when the' Speaker is' an excep~ 1t's agent has' filed a petition which has been dismissed and ,bon to th~, rule relating ,to othe~ MLAs. now, it is only when therefor~ _no'-sedond petiti'On ,can be·;admitted. The law does the ~C!;te of the Speak~ IS d~termined, ~if the _Speak~r is dis­ not"distinguish :between ,the .technicality and _merits and qU~I~d that there will be_ a cause.of .action' vis~aMvis the according to him., the petition. was -dismissed. on merits. remam:.ng M~As. Which together With' the Speaker would m*e o~e th.rd. So _therefore ,the cause of action _arises in', The iaw does not ma.ke any d~erence between -technical th~ p~rtlCular case, on the date the fate ,of tlle Spe,aker is. d~lded who defected alongwith the ,group. decision and _decision on merits. Acc6rd~ng to the c'Ounsel, th'e -issue has already _been decided. The decision has 'beE'n He further submitted that it is posSible tha.t old Speaker give~ under para I> by then Speaker, whose' decision is final wo~ld n~ver had been disqualIfied. In such case the remai­ b~cause-the Speaker has given- the-decision, on merits. AdvoM ning six could not have been disqualified because if he has. 'cate Diniz furniShed'the-copy of 'the repo~'ted Judgement Of not been dtsqualified and he forms part of this gro.UP alto­ ,Supreme Court 1968 at. page' 1197· on the DoctrVne of· Rea" 'gether ~ey are one-third. But if the Speaker is disqualified sonablene88. - and h,e IS a' p;:t.rt of this group, then these . six persens cannot claim to. faIl Within'th~ exception. .326 OFFICIAL GAZETTE- GOVT. OF GOA c . SERIES II No. 25 (EXTRAORDINARY No.2) 22ND SEPTEMBER, 1994

They are Jess than ~one third. In, that connection, therefore, while reply _to issue' No. 2 the counsel for the petiti6:p.er thc~ cause of actioh' has arisen- now and not on that-'date contended that this issue 1. e. resjudicata arose as, the petition cause of _$ctiort. this: is to be- noted, is a bundle of facts and was flIed by Shri Domnick' Fernandes, MLA and the, same the last fact 'which was relevant in -this particular· case 18 Was dismissed on technical ground, namely that' it did not the- decision of the fate of Speaker. comply with- the rules. There was no decision on merits; Once a petit:on is dismissed on a particular_ cause of action, According. to the co~nsel for. the. petitioner.' there is no whether it is on technical defect or otherwise, that is '~'inal requirement which has' to specify the date on which cause depision. For that' matter -the counsel for the petitioner of action -has arisen and that the quest-ion' Qf making a ,spe;' relied on Supreme Court AJ.E. 1966 Page 1332. On section 11 cillc averment of the date of which cause of acti(;m arose. of- C.P.C. "In order that a m~tter may be said to have _ He 'further 'submitted that there is no need ot' avert:ng been heard and fin_ally decided, .the decision in the 'former: because there -fs "no, limitation. ", There is no requirement suit must have' been' on - merits.' Whe:q for, exampleJ the under the law or in the rules which 'requires that there former dismissed by the trial court for wa~t of jurisdiction, should be an averment on the - date' of which the cause of or for default of plaintiff's appearance, i or on ground for action: arose. /" ' non-joinder of parties or miS-joinder of' -parties or multi­ fariousness, or on the gr.ound that_the.suit was badly framed, The learned counsel 'replying to the issue No.4 stated that or on the ground of- a technical mistake, or for failure en the part .of the plaintiff to produce probate or letters of the annex4res to the petition -were not- proper~? verified 'for administration or succession certificate when the same is which relied on" two decision. required by l~w .to entitle' the plaintiff to a decree, or fo~ failU1;e to furnish' security for costs~, or on the ground of 1. Air, 1964 Supreme Coun pr/ge 1546 and quoted the head tmproper valuation or' for failure' to pay, additional court note which reads as' follows: fee on a plaint which was under valued for want of cause of action or 'on the ground that' it is premature and the A deiect in verif:caUon in the matter, of election petition dismissal is confirmed in appeal (if any) the deciSion not' been on the merits would not be resjudicata in a subsequent is a matter which comes W1tllin C1. (c) of Sub"!"S (1) of Sec­ suit." tion 83. The _defect can be ,removed in -accordance with the principles of the. Code of CIvil Procedure 19D8 such a' defect does not attraGt Sub-S, (3) of Section 90 of CPC in as'much ,The coimsei fUrther subrilitted that' the petition Was filed 'as'that a Sub-Section-does riot refer to non.:compI:ance with by pomnick l?ernanaes and those who have just signed there the proyisions Section 83 as a, ground for dismissing an saying. that ~ support, -they. ,are _not' parties, to the petition ot So therefore in order that there should be res:..judicata it elect!on pet~tion. Helice read:ng the relevant. sections, in part . VI of the Act, it is'- impossible to accept the contention that- a has to be litigation between the same parties. The principle . of 'res-judicata be appI~ed in a case of .!'t person who llas defect in ~\rer~fication- which is to be made, in the manner' laid down in the .code of Civil Procedure-1908 for the verifi­ knowledge atout- the litigation. We are- on' the question of res-jUdicata. Res-judicata is between the,' parties. If he cation of pleadings as required by CL (c) of Sub-S (~) of' is not a party to the petition the questlon of having knOWledge Section 83' ot-' CPC is fatal to the maintainability of the peti­ tion on' the point of question :raised that the 'annexures are Will not come in the way at alI. The counsel' further stated that the reS-judicata' will ,arise only where a person is 'il not properly verified the',.counsel ~relied upon two Supreme -' party ~o the previous petition. . , Court 4~Gision i.e. Air 1968, Supreme Oourt Page 1079- and I Air S~"PremeOou7·t Page 87.1. He further stated that the eause of 'action wilI arise _only after-the fate of Speaker is de.cided .. So eve:p. it that petition He further pOInted out that he_ had not challenged the ve~i­ had been decided on ,meritS; even if the Speaker had given fication in the petition in the' course of argume~ts and as a some z:easan to dismiss that petition, a cause of action would matter of fact' -the verification in th-e petition is absolutely have arise. Once' the fate of- Speaker was decided. So correct 8nct: there is no -defect~' They ,have challeriged that the-. ,that decisi<:in c~nQt come in 'the' way, of fresh petition: documents__ ~e_ not properl;y ver~ied. '

. '-.' - -\.' ,The cause of. action would· not have' arisen becaus'e mere The CounSel stated -that the respondents theffi!3elves are reM ,resignation from the party does not come in case _of, action. lylng on' the true meaning of -the letter tenderi~g' _the -~ig~ If - tney a.re more than one third, where is the, cause of nations. He fUrther contended that- since the pamphlet was an­ action. It would. be ,~n exercise ~ futility because' they annexure to the Petition, it -was .not orily necessary- to slgn would come wit.hin the exe:q:tption. and_verify it, but--that it shouid have been treated as ,a.-part' . of the -elect:on' petition itself and a ',copy served upon the He further submittel:! that it is the new Speaker who respondents. In this way. non compliance with the provis~ons was to decide the fate of seven who defected by· saying of section 86'( 1) of CPC is made out. Since the election peti~ that there was no split, the Speaker would be deciding 011 tion itself .reproduced _the whole of th_e pamphlet In. tr~la-, ~: breach of para q: of Tenth Schedule because the elected tion in English; it pould be said the, averment with regard member of the House would be facing a' deCision which to' the pamphlet was served uP9n the responden~ although had already been taken by Ute Speake'r.. The Speaker could in a translation and 'not in orig.inal. It,is quite clear_that not decide whether there ·was a' split or not. He would, sub-section (2) of section '83 has referencc not to .a; docu­ not be ~ble, to decide. that_ because one member of the seven ment which' is produced as evidence of the avennents of the MLAs i? the Speaker and\.his fate is to be decided by SpeCial election' j>etiiton which -are put not in the el~ction petition Authority tp.at is: created under the Tenth Schedule. but :-jn the accompanying Schedules or anne:l;::ures. There are quite a number of examples from which it would' be appa­ He ,further, submitted that the, authorities are different, rent -that many ,of the averments of the election petition are the jurisdictions are different.- This jurisdiCtion of the capable of being put as Schedules, of annexures. The details Speaker to ",decide on the fate of the former Speaker and of the averments too compendious for befng induded in the it had, to be 4ecided by the elected Member, of q:..e House. cle'etion petition may be ,set out in~ the Schedules or anilexu­ res to the election Petition._ The law_ then requires that even LasUy arguing the issue No. a of the withdrawal of the though they are outside the election petition, 'they must be Writ, petition filed by Dr. Wilfred' D'Souza in the Supreme" signed and verifi~.. but such annexuz:es or sches]ules are Court the Counsel submitted that it is the petitio.n filed before­ then treated, 'as integrated with the election petition and a forum that had, no jurisdiction because - under clause 7 'copies of them must be'served on_ the respondent is the requi,_ of the 'Tenth Schedule.. The -Supreme Court had held that­ rement 'regarding service of the,- election petition_ is to, be 'it had powers to review. But the, Supreme Court has no wholly complied with. But .what we have sa,id here does LOt­ powers to entertain_ an-original petition. 'This is an original apply to documents which are merely evidence jn the case 'petition filed" before' the 'Supreme Court asking the court but which for reasons of clarity and to land force to the to. disqualify. The' Supreme" Court had no jurisdiction '¥o_ petiti~n are' not kept back 'but produced or filed With tile decide. The Supreme Cqurt ,decided only that 'the _powers ,ele~on ·pet,ition. to review the order of 'the Speaker Is ,not." t~ken away. Supren).e Court' has not 'arrogated to itself the _ power to, _They 'are in no sense an- integral part of the - averments decide on the disq1,laIification in the first instance. So -of_.;, the petition ,but are only evidence 'of those averments therefore, Dr: Wilfred ,D'S:ouza's petition before, the Supreme ',and ;bi ':proof thereof.: The pamphlet tiler,efore'must be treated Court under Article; 32 was. petition filed before the Supreme ~j;a-:"'< • . , ... a~ay flled in the Supreme! Court is totally void. ,~ " OFFICIAL GAZEITE - GOVT. OF GOA 327 22ND SEPTEMBER, 1994 SERIES II No. 25 {EXTRAORDINARY No.2) Judgement 'Of the 'Supreme' court,. the Sup:e~e court hai;: He fu"rther submitted that 'the . petition -under-32,.of the· held ,that non-verification ''Or' defectIve venflcabon. shall not constitution of India for declaring the Members of the ~be made. It is in .that; context, because. sectlOn ,83 is Legislative Assembly as disqualif~ed before Sup~~e .C~urt attracted and not section 81. A division Bench of the Bom~ was a- petition filed before a Court that had no JurISdlctIon. bay High Court conside1;'ed provision which are p~a' ma~e~al~ That being the case, issue _No.4 has ~o consequences .!)n in the Cooperative S'Ocieties Act The CooperatlVe. SOCIetIes this petiUon. ~ that connection a.ls~_ the question of r~s­ Act pointed out that a petiti'On. shall be accomp.a~lled" by .an -judicata is probably sought to be raIsed by t~em~ To gIve affidavit. The petition. shall be signed and ~erlfled m the stress on this proposition- the petitioner relu~d upon the manner, as in the petition. That non-verification or defe.ctive decision of the, Andhra Pradesh High Oourt in AIR 1971 at verification shall not be made. I~ is in· that context, because page 281, that if the former litigation ,was before a Court section 83 1s' a attracted.' and not section 81. A division, without jurisdiction evep. if an appeal is fUed, Bench of the' Bombay High Court considered provisions which are para material in the Cooperative Societies .~ct. He ref~rred to the Writ Petition filed by Dr. Jhalmi jn The, Cooperative Societies Act pointed out that·a petltlO!l the High Court where an observation is made that there shall be accompanied by an affidavit.. The petition shall be was a delay and iaches. Those observations are made in signed and verified in the manner as in t.he petition. If~ the light of the decisions which were cited' before the Fiigh contended that as far as the point ,of verification of the Court and which are transcribed, in the decision. . That iietition and verification of annexures, the rule' "says that princi.ple is asserted becaus,~ the matter is being adjudicated the annexures' to' the petition shall be, wrified in the very upon in' writ petition" and rejurisd.iction it has been held same manner as in the petition which' again says 'shall be that delay or 1~clJ.es are relevant. It il:!. not in· tp.e, context verified in the manner provided in the Civil Procedure Code. of an~ e~ection petition as such:. The annexures to the .petition are not verified at all. The annexures are interior part to the. l?etit~on and, the. very He' further contended that election law give time limit. First annexures is a letter which started the very pro'cess Election Law, Representation of Peoples ·Act lays down of this disqualification .movement, that we ha:.ve- ten4er.ed out the tfme limit tp the ,question of saying la~es and delay suggestions from the. Politic~l ~arty; does not arise. Representation of peoples A~t .provides ~5 days time limit but in, case of T€n~h 13ch~ule there is no S6 that 'is the interior part cif the Petition and if. that IS time limit as such. The principle, that Issue has come not·. verifi"ed, ·then the whole petition is to be dismissed. immediately without delay or laches i~ the principle laid down in the light of the principles so far. as re,jurisdictio:'1' , While replying to the next point the 'petition filed, by is concerned and if the decision cited are gone through, Dr. \Vilfred' b'Souza be referred to prayer (C) .that the than one' can '. definitely come to the conclusion that, tnis abov.e petition 'be entrusted 'to the . Deputy 'Speaker' in 'view 'observation is made because they were, exercisihg rejuris­ of the fact that the Speaker' of the House Dr.. Luis ·Proto diction. The Supreme C,our.t hM held that inquiries, in an Barbosa being the Leader of the Goan Peoples Party and electi01t petitlion s1wuld be expeditioU8. Hence the matter' signatory to' the letter beSides the six members is an jnte­ is not of inquiry. . . rested party, who cann'Ot be a Judg~ in his own case. So the original petition' was filed in the Supreme Court' because The . Counsel further contended that the 1974 decision ~nd Supreme Court has no jurisdiction in the matter. It was th~ the deCisiOOl cited again in the A.I.R. 1990· ~omb3:Y' page ..90 matter directing the Supreme Court to order' the Deputy that in an election 'petition in. the ·matter of Co-operatIve Speaker to try tllis petition. He withdraw petition without Society was filed withouttsupporting affi~avit~ So the ,?o,;u·t any anamoly whatsoever, that he can file this petition before said one cannot file an affidavit subsequently. The decIsIon the Speaker who has not been disqualified. After the with­ is not applicable to the facts of this case because here w~ drawal of the, petition no other petition for disqualification have a' petition that is properly verified so far as the .Jther was filed before tlle Speaker by the Leader of the House .. decision is concerned, that is AIR 197.4, Supreme Court at He further Submitted that as far as the party on delays page 1-907, cited by him again deals with verification of the was concerned he' referred to the Supreme Court on the petition and not of' the documents. point of. reaso~bleness.. It was a question of revision. It was not a Writ Petition. Question was what is the time for He further cited a case.of Supreme CO\lrt 1974 at page. filing a reviSion or what is the time for passing an ord~r 1907 wherein if S'O happened that the party when m'aking' ,in revision and the Court had held when statute does not verification had not disClosed the, sQurce of information. In prescribe time for doing something, that has to be done this case source of information has .been disclosed so the within reasonable time statute itself construes certain things verification in' this ,case is perfectly right and it is net that 'should be done'· Within 'reasonable time and the Supreme covered by 1974 Supreme Court. As far as the documents Court,had held that a few months time would be reasonable. are concerned the law laid down bY' the' . Supreme' Court A reference has been made' here to the Doctrine of Rea­ is altogether different for which he relied on the two decisions sonableness has been niade in 'connection .with the disquali­ which he cited earlier.. The recent· deCision given in 1984 fication petition pending over dispute. He further contended says that in this' cirl!umstance there is no question 'Of that whenever tlie time is not presciibed' the matters are verification. The decision of the 'Supreme Court 1984 takes to' be dealt with by applying the Doctrine of Reasonable­ care of that" as far as the documents· are concerned lastly "ness. This)s not in connection with the writ petition. This he stated that there is no limitation, that the cause of exactly and precisely the point, 'Of disqualification. Lastly action has arisen only after the 'disposal of the petition it was 'argued that In the matter of representation in, repre­ of the, Speakerp sentative body it is of utmost importance that the . challenge must be' prompt and forthwith. In this context, the High Advocate Agne10 Diniz while replying to the point raised Court had held that even though there is no time limit,. he by the advocate fOT the petitioner stated that the cause of should come Within the reasonable,time. action' never arises' in s~ages it arises on that date. After hearing the arguments and counter arguments from Admittedly' on that date seven persons went out of the the Respondents. and Petitions I have come to the conclusion political party so it' is' on .that date that the cause of action as follows: has arisen'. So the'~ fact that the Speaker. was subsequently disqualified'. does' n:~t have anything to dOl \Yith the cons· As regards the issue No.4 regarding Verification I, would titutien. He, referred to the .Bombay Judgement cited by not. like to discuss much' as in this particular case the peti­ him earlier, the only 'Judgem'ent which c'onceded provisions tioner's Advocate has argued that the source of information which are para material to. the provisions in the Disquali­ has been disclosed and does not vitiate and ,I am inclined to ficatlon Rules. ~gree with him.

He further contended that under. the Representation l..f As regards the issues 1. 2, 3, it is pe~nent to note that the Peoples Act there are three previsions which has tt), the cause of action arose on 24~3-199-0 and . petition was be noticed, Firstly'Section 81, Section 83, and Section 86 filed on 4-1-1992 i.. ev almost after two years and' that no Section 81 'needs certain things to be done for a petition. justification is. given by the petitioner for delay, in filing the Section 83 deals with the verification part, and section ~6 . petition and earlier also a similar petition was dismissed says that if the provisions of section 81 are not complied on the grounds of technicalities of verification wnerein the with the ·petition shall be dismissed. In other words, ,section petitioner 'was a signatory and thereto no fresh ap'plication 86 does' not refer to Section 8S~ It says only if it has noc i.n proper. format nor any review petition was preferred complied with the provisions, of Section 81 then the petition :: :~ere,by showing complete lack of interest on the part of shall be' dismissed. : So it is in that context in' some 'of 'the tlie. pe~itioner. It is further significa.nt to note that' the :128 OFFICIAL GAZETTE - GOVT. OF GOA

SERIES II No. 25 (EXTRAORDINARY No.2) 22ND SEPTEMBERj 1994

Judgement of pro Kashi~ath .Jhalmi disqualifying Dr. Lui~ In the result aU the petitions ~ d~missed. No order as to Proto Barbosa was. pronounced on 14-12-1990 even at this costs. point of time the petitioner could have filed disqualifi­ the- Sd/- cation petition against the Respondents but it was also not Panaji-Goa, , (SHAIKH HASSAi'1 HAROON) done. In the famous. Court Judge~ent· Dhartipakar Madan Dated: 15th September, 1994. Speaker Lal Agarwal, v /s Shri Rajiv Gandhi, Supreme Court AIR 1,987 at' page 1577, also speaks reasonabieness of time of To filing the election petition which could also be made appli­ 1. Shri Luis Alex CardOzo, MLA cable in -the cases of disqualification petitions on the Tenth 2. Shri Somnath Zuwarkar, 1\1LA Schedule to decid~ the Doctrine of Re~sonableness of time, 3, . Shri J. B. ,Gonsa.1ves, MLA It may also be mentioned that the withdrawal of the Writ 4. Shri MauVin Godinho, MLA Petition No. 492 of 1990 in, Supreme Cou~ on the same 5. Shri Churchill Alemao,- MLA alleged cause of action by Dr. Wilfred ,D'Souza the Leader 6. Smt. FarretFurtado e GraCias, MLA -of the Cong~~-I ~~slat~re Party anc:1 therefore thi::; ~~tion 7: Shri Victor Gonsalves; MLA amounts to ~es-Judicata ~nd therefore, I prefer tq- agree with 8. Dr,' Wilfred D'Souza, Leader of cOngress (I} Party. the Respondent Qn this point also, Panaji-Goa. 9. Secretary. Chief Election Com'miS&io~ of India •. Therefore my findings to'the issueS at 1, 2, and 3, aI.:'e New-Delhi. answered in the afirmative. 10. Chief Secretary, Government· 'of- Goa. Panaji-qoa. 11. S~c~etary to Governor, Goa. As regards the argument3 of the petitioner th~t Dr.. Copy to: it Barbosa who has since been disqualified should not be cotlnted to constitute a _group ,consistina- of 1/3 of the MemQers of The Chief Minister of Goa, Legislative Party. I am riot inclined to agree with the same Panaji-Goa. . because, the split being one time process and the subsequent Assembly HaP., ASHOK B. ULMAN disqualification of Dr, cannot be taken Panaji-Goa. Secretary into consideration for this purp?Se: 15th September. 199*.

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