902-WP 535-22.DOC

Amrut

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.535 OF 2022

Shri Raghoba S. Gawade

S/o Shantaram Gawade,

aged 55 years,

Indian National, Farmer,

Married, R/o H.No. A-11,

Gawade-Wada, Mandrem,

Pernem Goa.

… Petitioner

Versus

1 Goa State Election Commission

Altinho, Panaji Goa.

2 Mamlatdar of Pernem Taluka

Returning Officer

Pernem Taluka

Pernem Goa.

3 Mr Prashant Vasant Naik,

H.No.B 42, Naikwada,

Mandrem Goa.

4 Gopinath Purushottam Naik

B-46, Naikwada, Mandrem Goa

5 Luis Duming Fernandes

Satchebhatlem, Mandrem Goa

6 Sandesh Anant Kerkar

H.No.B-97/A, Naikawada, Mandrem,

Pernem, Goa 403 527

7 Shantaram Keshav Naik

Naikwada, Mandrem Goa.

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8 Sidharth Suryakant Gawade

H.No.A-1, Gawadewada,

Mandrem, Pernem Goa.

…Respondents

Mr Vishnuprasad Lawande and Mr Parimal Redkar, Advocates for the

Petitioner.

Mr D. Pangam, Advocate General, with Mr P. Arolkar, Additional

Government Advocate for Respondent No.2.

CORAM:

M. S. SONAK &

BHARAT P. DESHPANDE,JJ

DATED:

10

th JANUARY 2023

ORAL JUDGMENT ( Per M. S. Sonak, J)

1.

Heard. Mr Lawande appears along with Mr P. Redkar for the

Petitioner. Mr D. Pangam, learned Advocate General, appears along

with Mr P. Arolkar, learned Additional Government Advocate for

Respondent No.2.

2.

Leave to amend the cause title by indicating Respondent No.3

with the correct name as Prashant Vasant Naik instead of Prakash

Vasant Naik. Amendment to be carried out immediately.

3.

The Petitioner seeks a writ of quo-warranto for removing

Respondent No.3 as the Member/Pancha from the Village Panchayat

of Mandrem, Pernem Goa.

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4.

Mr Lawande submits that Respondent No.3's name was earlier

included in the Mandrem Legislative Assembly Constituency electoral

roll. However, on 05.01.2022, his name was included in the electoral

roll of the Mapusa Legislative Assembly Constituency. He submits that

this was, in all probabilities, pursuant to an application made by

Respondent No.3 for such change. However, by taking advantage of

the fact that Respondent No.3's name continued in the electoral roll

of the Mandrem Legislative Assembly Constituency, Respondent No.3

contested and got elected as a Pancha from the Panchayat of Mandrem

Constituency.

5.

Mr Lawande submits that Respondent No.3 played fraud in the

electoral process. He deliberately suppressed the factum of change at

his instance. Mr Lawande accepted that the electoral rolls for the

Legislative Assembly are to be taken as a base for elections to the

Panchayats. He pointed out that the electoral rolls for Legislative

Assembly are prepared under the Representation of the People Act

1950. Therefore, he relied on Section 17 of the R.P. Act, 1950, which

provides that no person shall be entitled to register in the electoral rolls

for more than one constituency.

6.

Mr Lawande relied on the decision of the learned single Judge

of Madhya Pradesh High Court in Suresh Choudhary Vs Atarlal

Verma and others,

1 where a writ of quo- warranto was issued after it

1 (2006) 3 MPLJ 506

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was found that the returned candidate suppressed the facts about his

disqualification. He also relied on K. Venkatachalam Vs A.

Swamickan and another

2 to submit that the powers of the

Constitutional Court under Article 226 of the Constitution are always

retained, and there is no bar to issue a writ of quo-warranto simply

because no recourse was taken to the remedy of an election petition

within the period prescribed.

7.

Based upon the above submissions, Mr Lawande urged to issue

a writ of quo-warranto.

8.

The learned Advocate General submitted that the qualification

for membership in a Panchayat is provided under Section 9 of the Goa

Panchayat Raj Act, 1994. He pointed out that every person whose

name is in the list of voters referred to in Section 13 of the wards in a

Panch