AGNELLO CARIDADE LOBO Vs. SANJAY A PEDNEKAR

JUDGEMENT

(1.) The writ petition to be disposed of finally at the stage of admission as per orders of this Court dated 30.4.2009. Accordingly, we admit the writ petition by making rule, returnable forthwith. Respective Advocates waive notice for the respondents. The matter is heard finally by consent.

(2.) Challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India raises a question of disqualification of respondent No. 1 as a Member of res pondent No. 2 Village Panchayat. Declaration sought for by the petitioner is for that disqualification and for a relief that the seat has become vacant. The facts are not much in dispute. The present respondent No. 1 is elected as a Member of Village Panchayat Socorro on 7.5.2007 and as its Deputy Sarpanch on 19.5.2007. One Shri Pinto has got a plot having No. 6 in area of said Village. He has entered into an agreement dated 7/12/07 for construction of residential building on said plot with respondent No. 1, who has been described therein as Contractor. Total cost of said construction payable by said Shri Pinto to respondent No. 1 is stated to be Rs. 32,94,000/- and it is admitted by respondent No. 1 before this Court that he constructed the said building and by December, 2008 he received an amount of Rs. 32,70,000/-. Respondent No. 1 has disclosed that an amount of Rs. 24,000/- has been retained by owner Shri Pinto as retention amount and respondent No. 1 is entitled to demand it after monsoon of 2009.

(3.) In this background, Senior Advocate Shri V.B. Nadkarni with Shri P.A. Kamat for the petitioner has argued that respondent No. 1 participated in the Panchayat meeting held on 15.3.2008 and incurred disqualification as contemplated by section 12(l)(d) of Goa Panchayat Raj Act, 1994 read with section 55(4) thereof. He points out that in that meeting construction licence was directed to be issued to owner Shri Pinto and accordingly, construction licence has been issued on 26.3.2008. Advocate Nadkarni points out that even these facts are admitted by respondent No. 1. He states that therefore by following the judgment of the learned Single Judge of this Court in Ashabai Laxman Gawande Vs. Additional Commissioner, Amravati Division & ors., 2005 4 BCR 335(N.B.) it is apparent that respondent No. 1 has incurred disqualification and his seat has become vacant. To explain the scope of deeming section as appearing in section 55(4) of the Goa Panchayat Raj Act, 1994 ("1994 Act" for short) he has relied upon State of BombayVs. Pandurang Vinayak and ors., 1953 AIR(SC) 244. He also points out that perusal of sections 10, 11 and section 12 read with its sub-section (2), clearly shows that the petitioner has no other remedy in the matter, but to knock the doors of this Court. He states that by way of abundant precaution, the petitioner approached the Goa State Election Commission, but then vide its communication dated 26.12.2006, the Commission informed him that it is not the authority to decide the issue of disqualification under section 12(l)(d) of 1994 Act. He, therefore, states that declaration as prayed for may be granted and the petition should be allowed by issuing writ of quo warranto.