@JUDGMENTTAG-ORDER
1. Heard. The Petitioners herein are the components of the Comunidade of Sirsaim which Comunidade is presently under the management of a Managing Committee appointed by the Government w.e.f. 24-2-2009. The Petitioners filed a representation to Respondent No. 3, the Administrator of Comunidade stating that certain persons were wrongly included as gaonkars of the said Comunidade as they were foreigners residing elsewhere outside the State of Goa, and, on account of inaction on the part of the Administrator on their said representation they filed the present petition, interalia, for a direction to the said Administrator to cause to prepare and publish Voters List based on corrected register of the "Jonoeiros".
2. Notice of this petition was given to the said Administrator as well as to the Comunidade, and both have filed their affidavits in reply.
3. According to the Administrator, it is the Registrar/Clerk of the Comunidade and the attorney who is required to prepare a list of able components for the formation of the Managing Committee and the said list is to be prepared under Clause 1 of Article 42 of the Code of Comunidade. The Administrator has further stated that it is the duty of the said attorney and the said clerk of the Comunidade under Article 42 of the said Code to prepare the list of able components in law, and instead of preparing the said list, the attorney of the said Comunidade by letter dated 8-9-2009 requested him to extend the time to prepare the list of the able components which request is not in accordance with law, as the Administrator has no power to extend or vary the time period to prepare the list as the time is statutorily fixed under Article 42 which requires that the list of able components ought to be prepared before 31-8-2009, and, therefore he, by letter dated 11-9-2009 had directed the attorney of the said Comunidade to prepare the list of able components immediately and submit the same to his office but the said attorney failed to act in preparing the list of able components, as per his letter dated 11-9-2009. Again, he has stated that by another letter dated 16-9-2009 by exercising his powers under Article 125(1) of the said Code he directed the clerk to comply with the provisions of the said Code by preparing a list of able components within three days in order to able the Comunidade to hold the elections for the triennium of 2010 to 2013. The Administrator has also noted in his said affidavit that the grievance of the Petitioners was that earlier the names of some foreigners were included, but according to him, after the liberation of Goa the expression "foreigner" is to be interpreted in tune with the Constitution of India vis-a-vis the object of the Code of Comunidade. The Administrator has also stated that he directed the attorney and the clerk of the Comunidade to verify the list of gaonkars and correct the same in pursuance of the said Code. He has also stated that it is for the Managing Committee to verify and ascertain the authenticity of the components at the time of registration/renewal of the list of components which is to be completed by 31st May every year under Article 183 of the said Code.
4. The said attorney in his affidavit dated 13-10-2009 has stated that the list is required to be prepared on the basis of the accounts of the Comunidade for the last three years and uptodate list of "Jonoeiros" inscribed in the register of inscriptions. The said attorney has stated that the ex-Managing Committee had usurped the office nearly for ten years, and had not written the books of accounts for the last three years and unless the books of accounts are completed, a number of gaonkars who are indebted to the Comunidade cannot be ascertained, and their names cannot be on the Voters List. He has admitted that the Administrator had forwarded to him a representation of the Petitioners and had requested him to submit a report in that regard and that he had verified the inscribed registers, available records as well as gathered information from elderly gaonkars, and had confirmed that the said foreigners had no right at all in Goa, and that the list would be finalized and would be submitted to the Administrator by the next week.
5. Shri Parab, the learned Counsel on behalf of the Petitioners, submits that the list of able components has to be prepared on the basis of accounts books for the last three years. He further submits that in the absence of the accounts books the list cannot be prepared. Learned Counsel further submits that a number of persons were wrongly included, as they were residing outside the State of Goa and whether they are foreigners or not within the meaning of that word in the said Code is required to be decided by this Court.
6. Shri V. Rodrigues, learned Additional Government Advocate on behalf of the State submits that the Petitioners are trying to make this Court do something which they themselves are required to do in terms of the said Code of Comunidade and this cannot be allowed to be done.
7. In our view, the stand taken by the Administrator of Comunidade is fair and reasonable and is in accordance with the provisions of the said Code which requires the clerk of Comunidade and the attorney to prepare the list of the able components. Indeed Article 42 of the said Code provides that for the establishment of the Committee the clerk and the attorney shall prepare every three years, before 31st August, two lists, one of them being of able components and the other of twenty major able components based on the accounts of the last three years and book of inscriptions of ''Jonoeiros'' and the shareholders in accordance with the conditions laid down in the Code. It is therefore obvious, that it is the primarily duty of the said two functionaries to prepare the lists and that cannot be abdicated by them, in favour of any one else nor can they expect that it should be done by this Court. Who are to be in or out of the said lists is essentially their discretion to be exercised by them, as per their understanding, as per the provisions of the said Code. In case they take a wrong decision the persons who are wronged by their decision would certainly be entitled to their remedy, as rightly submitted by the learned Additional Government Advocate. In case the accounts books have not been written for the last three years, as contended on behalf of the Petitioners, it is the Respondent No. 4 who should take appropriate steps in that regard, preferably in consultation with the Administrator, for doing needful in the matter. The clerk and the attorney cannot expect the Administrator or for that matter this Court, to perform the functions which are entrusted to them by the Code. In our view, this petition is misconceived, and, therefore is required to be dismissed, and considering the facts with no order as to costs.
