MAFALDO FERNANDES SARPANCH OF VILLAGE PANCHAYAT AVEDEM COTOMBI AND CHAIFI Vs. KUSHALI S KALEKAR PANCH VILLAGE PANCHAYAT AVEDEM COTOMBI AND CHAIFI

JUDGEMENT

(1.) RULE by consent to be heard forthwith.

(2.) THE petitioner who is a Sarpanch of village Panchayat of Avedem-Cotombi and Chaifi is challenging in this writ petition, an order passed by the Goa State Election Commission, Panaji, dated 30th April, 1996, which is exhibited as Exhibit G in this writ petition. The State Election Commissioner, third respondent herein, by order impugned, dismissed a petition filed by the petitioner. The petitioner had filed his petition as Case No. 2 before the Goa State Election Commission seeking a declaration that the first respondent herein, namely Shri Kushali S. Kalekar, stood disqualified for non-payment of dues to the Panchayat. It is necessary to note a few more facts to complete the narration of facts. It is borne out from the records that the aforesaid petition was filed by the petitioner before the Goa State Election Commission on the eve of a resolution of No Confidence Motion being moved against him by the first respondent. Shri Kushali Kalekar. The Goa State Election Commission had granted an interim injunction restraining the first respondent from functioning or holding out as a member by its order dated 21st November, 1995. This order was also vacated by the Goa State Election Commission by the impugned order. The counsel for the first respondent alone appeared before us and argued the case apart from the counsel for the petitioner. He tried to justify the order impugned. The main ground that has been urged by Mr. A. N. S. Nadkarni, counsel for the petitioner, is that the observation of the Goa State Election Commission that in the absence of rules framed under the Goa Panchayat Raj Act, 1993, the Goa, Daman and Diu Village Panchayat (Recovery of Dues) Rules, 1966, which were framed under the old Act will occupy the field for declaring a Member to be disqualified under section 10 (d) of the Goa Panchayat Raj Act, 1993, hereinafter called "the new Act". According to the State Election Commission, in order to say that a person is in arrears, a proper notice in the prescribed form should be sent to the person. The State Election Commission further held that section 10 (d) of the Goa Panchayat Raj Act disqualifies a Member only when he is in arrears for a prescribed period and since under the new Act, no rules have been framed, the prescribed period shown in the section should be taken as period laid down in the 1966 rules. The 1966 Rules provide for three months time for payment after the demand is made in the prescribed form. In short, the main ground of rejection of the petition filed by the petitioner by the Goa State Election Commission is that the first respondent cannot be said to be one who is in arrears for more than a period of three months in order to attract section 10 (d) of the Goa Panchayat Raj Act, unless he was served a notice in the form prescribed under the Recovery of Dues Rules, 1966, and he had failed to pay such dues before the expiry of three months from the date of receipt of notice. Before going into the controversy involved in this case, it is necessary to examine the relevant provisions of the new Act applicable in this case.

(3.) THE relevant definition sections are as follows :-