1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.267 OF 2010 Shri Damodar R. Naik, son of R. Naik, major of age, residing near Government Primary School, Simpal, Sancoale, Mormugao-Goa. …. Petitioner V/s 1. Shri Pratap A. Mardolkar, son of Anant Mardolkar, aged 50 years, resident of House No. 84, Bogmalo Junction, Alto Dabolim, Mormugao-Goa. 2. Administrator of Communidades (South Goa), having its office at Communidade Building, Margao, Salcete-Goa. 3. Communidade of Sancoale, through its Attorney, Mr. Satish Narvekar, Communidade Office, Sancoale, Mormugao-Goa. …. Respondents Mr. D. Pangam, Advocate for the Petitioner. Mr. R. Rao, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 11th JUNE, 2010 JUDGMENT : Rule. By consent, heard forthwith. 2. This Writ Petition is directed against order dated 12/03/2010 of the learned Administrative Tribunal by which petitioner's election as the President of respondent no.3 Communidade for the triennium of 2010- 2 2012 has been set aside. 3. There is hardly any dispute as to facts. 4. The petitioner herein is one of the able components of Communidade of Sancoale and was elected as substitute attorney on 3/12/2006 for the triennium of 2007-2009 and had even taken oath of office on 3/03/2007 as substitute attorney. However, he had no occasion for that triennium to act as attorney at any time. The petitioner was then elected as the president on 6/01/2009 for the triennium of 2010-2012. Petitioner’s election has been set aside by the learned Administrative Tribunal on the ground that the petitioner was a member of the Managing Committee for the triennium of 2007-2009 and therefore was debarred from being elected in view of Article 50 of the Code of Comunidades. 5. The Comunidades existing in the State of Goa are governed by the Code of Comunidades, 1961 (Legislative Diploma No.2070) and its administration by Chapter 4 of the said Code (Code, for short). 6. Article 39 of the Code provides that the affairs of the Comunidades are managed by a Managing Committee chosen every 3 years. The expression “Junta Administrativa” appearing in Article 39 of 3 the Code when translated would mean administrative Committee and in the indian context could be referred to as the Managing Committee. This is also conceded on behalf of respondent no.1. 7. The controversy entirely rests on interpretation of Articles 40 and 50 of the Code. Article 50 has been substituted after liberation, by the State Legislature w.e.f. 17/01/1998. So also Article 41. 8. Article 41 of the Code stipulates that the Managing Committee shall be elected by the Communidade from amongst the able components, including shareholders, preferably residing in the village. 9. Article 40 states that the Managing Committees shall be composed of three members: president and two members, one of them being the attorney and the treasurer. 10. Article 51, as substituted reads as follows “Persons who have already served as members of the Managing Committee shall not be elected, before the lapse of three years.” 11. According to the petitioner, the petitioner having been only a substitute attorney, he was not a member of the Managing Committee and therefore the prohibition of Article 51 was not applicable to him. 4 According to the respondent, a substitute is also a member of the Managing Committee and therefore was prohibited from contesting and being elected as the president. That is the long and short of the controversy between the parties. 12. The learned Tribunal by a circuitous process, has come to the conclusion that a substitute attorney was a part of the Managing Committee referred to in Article 50. The learned Tribunal also held that the moment a substitute was elected he becomes a part of the Managing Committee whether he functions actually or not. 13. Shri Pangam, the learned Counsel appearing on behalf of the petitioner submits that in order to attract the disqualification of Article 51 of the Code, there are 2 ingredients to be satisfied: firstly, a person has to be a member of the Managing Committee during preceding triennium and, secondly, such a person should have actually served as a member of the Managing Committee. Learned Counsel submits that as per Article 40 of the Code, the Managing Committee consists of only 3 members namely, the president, the attorney and the treasurer and it does not include the substitutes which fact is again clear from Article 67 of the Code, which prohibits the members of the Managing Committee as well as their substitutes in taking part in auction or to give security for in the auction directly or through a third party. According to the learned 5 Counsel, in order to incur the disqualification under Article 51 of the Code, a person has to actually function or serve as a member of the Managing Committee and the petitioner for the previous triennium had not participated in any meetings, nor had functioned as a member of the said Managing Committee and therefore the petitioner could not have been disqualified. Shri Pangam has referred to Wharton's Law Lexicon, which defines the word “serve” to mean “to perform function; do what is required for,” which definition has been accepted by the Apex Court in para 7 of Coal Mines Provident Fund Commissioner V/s. Ramesh Chander Jha (AIR 1990 SC 648 (649). 14. On the other hand, Shri Rao on behalf of respondent no.1 has submitted that the petitioner was a serving member of the Managing Committee being its substitute attorney for the triennium of 2007-09 and, as such, could not file his nomination for the post of President for the triennium of 2010-2012. According to learned Counsel, respondent no.1 had filed his objection at the time of election, but the objection was not considered. According to the learned Counsel the expression “Managing Committee” has not been defined. According to the learned Counsel, the substitute president, substitute attorney and substitute treasurer do form part of the Managing Committee and are members of the Managing Committee. Shri Rao in this context places reliance on Article 30 of the Code which provides for election for a period of 3 6 years of the ordinary attorney and his substitute in a manner established by the Code. Learned Counsel also refers to Article 73 which provides for election of effective attorney and a substitute, elected for 3 years in accordance with Article 41 or appointed by the Governor in accordance with sub-article 2 of the same article. Shri Rao submits that the Code does not seek to differentiate between an effective attorney and substitute attorney and the enabling provision for both the said posts are the same and the powers wielded by a substitute are co-extensive with those of effective attorney. 15. Admittedly, the Comunidades themselves are unique institutions existing in the State of Goa and so also the Code governing them which is a special piece of legislation governing its affairs enacted prior to liberation. The provisions of the Code relating to elections now must be strictly construed and its requirements strictly observed and this principle laid down by the Apex Court in the case of Shri Banwari Dass V/s. Shri Sumer Chand And Others (1974 (4) SCC 817) must be equally followed in matters of elections under the Code of Comunidades. 16. As seen from Article 40 of the Code, the Managing Committee is composed of only 3 members namely the president, the attorney and the treasurer. It does not speak of their respective substitute. Article 50 7 says that persons who have already served as members of the Managing Committee shall not be elected before the lapse of 3 years. 17. Article 50 prior to its substitution prohibited those who served as such members (of the Managing Committee) to be members of the Managing Committee, before the lapse of 3 years except in exceptional cases duly justified. As already seen, “to serve” means “to perform function; do what is required for”. A “substitute” is a person or thing acting or serving in place of another (see Concise Oxford Dictionary). A substitute is not included in the Managing Committee as per Article 40 which is composed of only 3 members and not their respective substitutes. Likewise, only persons who have served as members of the Managing Committee i.e. as president or attorney or treasurer then only they would invite the disqualification from contesting the elections before the lapse of 3 years and this has been specifically stated by Article 51 of the Code. It is only Article 67 of the Code which puts the members of the Managing Committee and their substitutes into one bracket prohibiting them in taking part in auction, etc. Otherwise, a substitute has no role to play unless called upon in case of absence of either the president or attorney or treasurer. Article 62 provides that when a member of the Managing Committee cannot remain present at the meeting for a good reason, he shall inform the Clerk so that his substitute may be summoned and shall also inform the latter directly. It 8 follows therefrom that a substitute is never in the picture and is called only when one of the persons of the Managing Committee i.e. either the president or the attorney or the treasurer cannot remain present for a just cause, at the meetings. As said, from the articles referred to, it is only Article 67 of the Code which creates a common bar, both on the Managing Committee members as well as their substitutes to bid at an auction or give security for an auction directly or through a third party. 18. A combined reading of Article 40 and 50 shows that only those who have served as members of the Managing Committee namely the president, the attorney and the treasurer who are debarred from being elected again, before the lapse of 3 years That prohibition cannot be extended to the substitutes. A substitute unless he serves as an effective member of the Managing Committee cannot be debarred from contesting an election. The bar created is for those who have served as effective president, attorney or treasurer. A substitute can legitimately look forward to get elected for the next triennium either as president, or attorney or treasurer of the Managing Committee as long as he has not substituted any one of them during the previous term. As already stated, it is an admitted position that the petitioner was only a substitute, a substitute attorney, for the previous triennium. He had no occasion to substitute the attorney in the said triennium. He did not serve as an attorney and, as such, there was no bar for him either to be nominated 9 or elected as an attorney for the next triennium of 2010-2012. The famous quotation “they also serve who only stand and wait” of John Milton in his poem “on his blindness” cannot apply to the substitutes! 19. In the circumstances therefore, the view held by the learned Tribunal cannot be accepted. The Writ Petition succeeds. The impugned judgment dated 12/03/2010 is hereby set aside and the election of the petition for the triennium of 2010-2012 is restored, with no order as to costs. N.A. BRITTO, J. NH/-