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The Tribunal agreed with the petitioner and set aside the election of the third respondent. It however refused to declare the petitioner as elected. Hence this petition.

3. Mr. Thali, the learned Counsel for the petitioner contended that since there were two candidates only and the respondent No. 3 having been disqualified, the Tribunal was bound to declare the petitioner elected in his place instead of ordering a fresh election.

4. Mr. Coutinho, learned Counsel for the Respondent No2, submitted that the Administrative Tribunal has no power to declare another candidate as elected, either under the Code of Communidade which is the law governing the Communidades or the Goa Administrative Tribunal Act, 1965 under which the Administrative Tribunals are constituted.

7. The Administrative Tribunal, formerly known as the Tribunal Administrativa appears to have been constituted by the Government of Portugal under its Overseas Administrative Regulations. After the liberation of Goa, its existence and powers were continued and modified by the Goa Administrative Tribunal Act, 1965. [Under the Code of Communidades, the power to decide an election dispute arising out of elections to the Communidade is vested in the Tribunal vide Article 49]. The Tribunal has the power to decide matters arising out of several laws against decisions and orders of various kind such as:

(2) The Tribunal shall also have jurisdiction in relation to any other matter if such jurisdiction is conferred by or under any Act of the Legislature of the State of Goa.

(3) The Tribunal shall have, no jurisdiction in any matter which is pending in a court of law or which, in its opinion, involves a question as to the validity of any enactment for the time being in force.

Article 49 of the Code of Communidades confers powers in the following terms on the Administrative Tribunal:

Article 49. In case of irregularities in the election, any component of the Comunidade with right of voting may appeal to the Administrative Tribunal within 5 days, it being allowed the use of ordinary paper for all proceedings.

10. The power to declare another candidate elected is also not incidental to the power to declare the necessity of holding a fresh election. The two powers are independent in intent and purpose. The power sought to be inferred must be absolutely necessary for the exercise of the power expressly conferred, which is not the case here. In any case, I am of view that Article 49 of the Code of Comunidade which was enacted in 1961 by Legislative Diploma No. 2070 specifically deals with the consequences of annulment of an election and provides that in such an eventuality the Comunidade must be convened once again for holding a new election. There is no other provision in any other law which provides for an alternate consequence. Thus, even if Article 716 is held to be attracted for the purpose of deciding the scope of the power of the Tribunal while dealing with an election dispute, the question whether the Tribunal has the power to declare another candidate elected or must invariably direct a fresh election, must be determined by the special provision, Article 49 and Article 716 may be allowed to operate only in areas where the Code of Communidades makes no provision.