JUDGMENT - G.D. KAMAT, J.:---This petition under Articles 226 and 227 of Constitution of India seeks a writ of certiorari or a writ in the nature of certiorari or an appropriate writ, order, direction for quashing and setting aside the order dated 12th October, 1989 made by the Presiding Authority, Sub-Division Officer, Mormugao rejecting the nomination paper filed in favour of the petitioner for electing Vice President for the Mormugao Municipal Council.

2. Facts giving rise to this petition are that for the election of Vice President of the Mormugao Municipal Council a special meeting was convened on 12th October, 1989 as the said office had fallen vacant along with the office of the President. This meeting was presided over by the Sub-Divisional Officer, Mormugao, the respondent No. 2. The petitioner is an elected Councillor of the Mormugao Municipal Council and his name was proposed for the Office of Vice - President to be elected at that meeting by a nomination made by Shri Prakash Parulekar who is a co-opted Councillor of the said Council. It is common ground that along with the petitioner, the first respondent, Shri Francisco Gerald Barreto and Shri Ashok Chandru Halarnkar were also proposed as candidates for the office of Vice President duly nominated by elected Councillor Parulekar had no right to vote at the election and therefore no right to propose and nominate the petitioner as a candidate for the election of the Vice-President. At the elections that were held on that day needless to mention that the respondent No. 1 got the majority of votes and was accordingly declared duly elected to the post of Vice-President.

3. The sole question to ask in this petition is whether a co-opted Councillor can nominate another Councillor for being elected to the office of Vice President.

4. Mr. M.B.da Costa, learned Counsel appearing for the petitioner in support of this petition relied upon Rule 3 of the Rules called the Goa, Daman and Diu Municipalities (President and Vice-President Elections) Rules, 1969 and urged that having regard to the definition of a 'Councillor' appearing in the Act there is nothing to distinguish a Councillor elected from a Councillor co-opted. He therefore says that on reading this Rule with the definition of a Councillor as contained in the Goa, Daman and Diu Municipalities Act, 1968 it is open to a co-opted Councillor to propose and nominate and elected Councillor for election of Vice-President or President notwithstanding the fact that a co-opted Councillor to propose and nominate an elected Councillor for election of Vice-President or President not-withstanding the fact that a co-opted Councillor has otherwise no right to vote at the election of the Vice-President. According to him it is not possible to read any bar for a co-opted Councillor had otherwise untrammelled rights side by side and co-extensive with elected Councillor under the Goa, Daman and Diu Municipalities Act to participate in any meeting and vote for any Resolution and the only bar is that as co-opted Councillor cannot himself vote at the election of a President and Vice President and that too because the statute specifically provides for that eventuality. In this connection he points out the bar a contained in section 52(8)(b) of the Act. He therefore now says that apart from the exclusion of a co-opted Councillor to vote at the election of President or Vice-President it is not possible to read either in the Act or the Rules for want of powers by a co-opted councillor and hold that he is not empowered to nominate a Councillor of his choice for the post of the Vice-President.

Tersely put according to Shri D'Costa, if the legislature wanted a co-opted Councillor not to propose and nominate that curtailment would have found place in the stature just as the Act provides specifically that a co-opted Councillor shall not vote at the election of a President and Vice-President. Since it is not there he says considering all other powers of t

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