LAWS(BOM)-2012-4-170

FRANCISCO COLACO Vs. THE STATE OF GOA

Decided On April 30, 2012
Francisco Colaco Appellant
V/S
THE STATE OF GOA Respondents

JUDGEMENT

(1.) HEARD Mr. Dessai, learned Advocate for the petitioner and Mr. Nadkarni, learned Advocate General for the respondents. By this petition, the petitioner seeks direction against respondents no.1 and 2 to rectify the errors in Notification (extraordinary) dated 31/03/2012 published in the office gazette dated 31/03/2012 to the extent of shifting voters in Ward Nos.1, 2, 3, 5 and 7 of village Reis Magos as reflected in representation dated 05/04/2012 made by the petitioner to respondent no.2. The petitioner, who is a panch member of Village Panchayat of Reis Magos from Ward No.3 for the year 2007 to 2012 made representations to respondent no.2 pointing out certain errors in respect of Ward Nos.1, 2, 3, 5 and 7 of Village Panchayat of Reis Magos. Respondent no.2 directed respondent no.4 to rectify anomalies, if any, and submit a report. The petitioner claims that pursuant thereto, respondent no.4 submitted his reply to respondent no.2 dated 09/04/2012 withdrawing the report dated 07/04/2012 which was earlier submitted by respondent no.4. Thereafter, respondent no.4 addressed another communication dated 11/04/2012 stating that he was under tremendous pressure from Sarpanch Smt. Sushmita Pednekar and her husband and requested respondent no.2 to look into the matter. However, it appears that in the meantime, on 10/04/2012, the B.D.O. had already written to the Director about the report dated 07/04/2012 and withdrawal of the same on 09/04/2012.

(2.) THE petition was filed on 17/04/2012 and notice of the same was issued to the respondents on 19/04/2012. Respondent no.2 has filed affidavit, inter alia, contending that the petition is not maintainable in view of Article of the Constitution of India and in view of the notification dated 18/04/2012 by which election program for the Village Panchayats including Village Panchayat of Reis Magos, has been declared. Thereafter, the petitioner has filed additional affidavit contending that in respect of Village Panchayat of Calangute, the election has been postponed to 21/05/2012 instead of 16/05/2012 as originally scheduled.

(3.) PER contra, Mr. Nadkarni, learned Advocate General appearing on behalf of the respondents submitted that since the election program has been declared by notification dated 18/04/2012, bar under Article of the Constitution is clearly attracted and at this stage, it is not permissible for this Court to grant relief sought by the petitioner. Learned Advocate General further submitted that the Secretary of Village Panchayat has not been joined by name and as such, the reliance placed by the petitioner on the communications of respondent no.4 regarding the alleged pressure from the Sarpanch, is of no help to the petitioner. Mr. Nadkarni further submitted that the Secretary at one point of time having informed respondent no.2 that there were errors in the formation of Wards but later on withdrew the report and thereafter, again contended that he was under tremendous pressure from the Sarpanch and as such, no reliance could be placed on the communications of the Secretary of the Village Panchayat. Mr. Nadkarni further invited our attention to the fact that certain errors as mentioned in paragraph 16 of the petition in respect of Ward No.3 are factually not correct as is evident from the gazette dated 31/03/2012 which discloses that some of the houses mentioned in paragraph 16 of the petition have been already included in Ward No.3. Mr. Nadkarni submitted that in view of Articles and of the Constitution of India, once the election program is declared, no interference is warranted by this Court and the petitioner is not entitled to the relief sought for. Mr. Nadkarni further submitted that the reliance placed by the learned Counsel for the petitioner on the judgment and order is totally misplaced and the same do not advance the case of the petitioner. In support of his submissions, Mr. Nadkarni placed reliance upon the judgment of the Apex Court in the case of State of U.P. and others Vs. Pradhan Sangha Kshettra Samiti and others; : 1995 Supp (2) SCC 305 and the judgment of the Division Bench of this Court in the case of Jadhav Shankar Dyandeo and others Vs. The Collector and another; 2010(6) Bom. C. R. 48.