G N CHIKKANAGAPPA Vs. DEPUTY COMMISSIONER CHITRADURGA DISTRICT

JUDGEMENT

(1.) During the elections held in 1968 to the Village Panchayat of Narayanagundahalli in Holalkere Taluk, Chitradurga District, the Petitioner was elected as a member of the Village Panchayat. Later he appears to have been elected as Chairman of the Village Panchayat also. The 2nd respodent was elected as a member of the Village Panchayat In 1969. On 3rd October 1969 the 2nd respondent made an application to the Deputy Commissioner Chitradurga District under S.11(3) of the Village Panchayat and Local Boards Act, 1959 (hereinafter referred to as the Act) alleging that the petitioner who was elected as a member of the Village Panchayat was drawing a 'Potige' from Government as Gumsta-Patel for the past ten years. This amounted to the petitioner holding an office of profit under the State Government which constitutes a disqualification under the provisions of S.11(1) (j) of the Act. The 2nd respondent made an application praying for action being taken against the petitioner under S.11(3) of the Act The Deputy Commissioner, Chitradurga District who is impleaded as the 1st respondent in this petition allowed the 2nd respondent's application and declared that the seat of the petitioner as a member of Village Panchat at has become vacant and that the same should be filled up as contemplated under S.35 of the Act. In respect of this order of the 1st respondent the petitioner has filed this petition under Art. 226 of the Constitution praying for the issue of a writ of certiorari quashing the order dated 7-1-1970 made by the 1st respondent and marked Ext.A. In this petition.

(2.) It is undisputed that the petitioner was a Gumasta-Patel even prior to the date of his election as a member of the Village Panchayat of Narayanagundanahalli in 1968. Therefore the alleged disqualification was existing on the date of his election, but his election was not questioned by any election petition under S.13 of the Act on the ground that he was disqualified to be chosen as a member. The disqualification now pleaded against the petitioner is not a disqualification that has come into existence subsequent to his election as a member of the Village Panchayat. So the question that arises in this petition is whether the 1st respondent had jurisdiction to pass any order under S.11(3) of the Act, on the ground that the petitioner is disqualified to be a member of the Village Panchayat and therefore his seat has become vacant. The decisions in Mahipatrao Balakrishna Rao v. Bharmagouda Venkanagouda Patil, (1964) 2 Mys.L.J. 442, and the decision of the Supreme Court in Election Commission v. Venkata Rao, AIR 1953 SC 210 which has been followed by this Court bear on the point. The decisions referred to above clearly indicate that what is contemplated under S.11(2) of the Act is a disqualification that comes into existence subsequent to the member becoming a member of the Village Panchayat. It is only the supervening disqualification and not an existing disqualification that is contemplated under S.11(2) of the Act. Under S.11(3) of the Act, the Deputy Commissioner is vested with the power to decide the question whether a vacancy has occurred under sub-sec. (2) of the Act. Clause(i) of sub-sec. (2) of S.11 which is relevant for the purpose of this petition reads as follows:

(3.) In Saka Venkata Rao's case(2) the Supreme Court examined the scope of Arts. 190(3) and 192(1) of the Constitution of India. The provisions of Art.190(3) is identical with the provisions of S.11(2) (i) of the Act. Art 192 of the Constitution corresponds to S.11(3) of the Act. While referring to these provisions the Supreme Court makes the following observation.