VENKATRAMAN SUBRAY RAYSAD Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) These 2 writ petitions are disposed of by a common order since the parties are same in both these petitions and the subject matter of dispute is more or less than the same in both these petitions. In WP. No. 2595 of 1987 the petitioner has sought for a writ in the nature of mandamus directing the 1st respondent to hold fresh election consequent on the order of the Divisional Commissioner produced as Annexure 'C' in the writ petition. By this order the Divisional Commissioner had set aside order of the Deputy Commissioner, Karwar, dated 24-12-1986 made in pursuance of Section 4(2) of the Karnataka Zilla Parishads, Taluka Panchayat Samiths, Mandal Panchayats and Nyaya Panchayats Act, 1983 (in short the Act).

(2.) In Writ Petition No. 8977 of 1977 the petitioners who are the succesful candidates in the election to the Mandal Panchayats of Sugavi and Gudnapur after the Deputy Commissioner made the declaration constituting the Mandal for Sirsi Taluk pursuant to the power conferred on him under Section 4(1) and (2) of the Act have questioned the validity of the order of the Divisional Commissioner setting aside the declaration of the Deputy Commissioner on the ground that the same is violative of the principles of natural justice since the petitioners were not made parties before the Divisional Commissioner. So in W P. No. 2595 of 1987 whether the petitioner can seek a writ in the nature of mandamus directing the Deputy Commissioner to hold fresh election and thereby give effect to the order the order of the Divisional Commissioner under Annexure 'C' arises for consideration and in W.P. No. 8977 of 1987 whether that order of Divisional Commissioner is violative of the principle of natural justice arises for consideration.

(3.) Learned counsel for the petitioner in W.P. No. 2595 of 1987 who is the 3rd respondent in W.P. 8977/87 maintained that the order of the Divisional Commissioner in exercise of the powers under Section 4(3) of the Act is neither a judicial order nor a quasi judicial order ; but an order made in exercise of the powers to make conditional legislation and, therefore the petitioners in W.P. No. 8977 of 1987 who have come on record in the first petition were not necessary parties before the Divisional Commissioner and hence they cannot complain of the violation of the principles of natural justice. In support of this contention he relied on 3 decisions of this Court rendered on a consideration of Section 4(3) of the Act. There is no dispute and it cannot be disputed that the provisions of Section 4(3) of the Act confer on the Divisional Commissioner a power to make conditional legislation by revising an order of the Deputy Commissioner under Section 4(1) of the Act to declare any area comprising a village or group of villages having a population of not less than 8,000 and not more than 12,000 to be a mandal subject to the conditions mentioned therein. The power to amend the earlier declaration under Section 4(1) of the Act is also conferred on the Deputy Commissioner under Section 4(2) of the Act. That power has to be exercised after previous publication of the proposal by notification. Under Section 4(3) of the Act, the Divisional Commissioner on the application mdae within 30 days from the date of the notification by any person aggrieved by such notification, or suo motu, and after giving a reasonable opportunity of being heard to the applicant or to the mandals concerned revise the orders of the Deputy Commissioner under Sub-Section (1) or sub-section (2) of Section 4 and pass such order orders that may be necessary as provided for under the latter portion of sub-section (3). The cases on which the learned counsel has relied are cases which arose for consideration before the elections to the Mandal Panchayats took place under the revised notification made by the Divisional Commissioner in exercise of his power under Section 4(3) of the Act, that is to say, the members of the mandal Panchayats had not been elected pursuant the notification constituting the mandals for the purpose of holding mandal panchayat elections. In that context, this Court in the aforesaid decisions has consistency taken the view that it is not necessary to hear all the villagers who are residents of a mandal who feel aggrieved by the revised constitution by the Divisional Commissioner. But, on the facts before this Court, the respondents who have come on record and who are elected as members of the Mandal Panchayat are affected by the order of the Divisional Commissioner made pursuant to the power conferred on him under Section 4(3) of the Act. Therefore, the decisions of this Court reported in 1986(2) Kar.L.J. 253 (Kale Gowda and Others v. State of Karnataka & Ors) that of the Division Bench affirming the order of the learned Single Judge in ILR 1982 Kar. 2676 and the decision in W.P. No. 4289 of 1986 disposed of on 1-10-1986, are all cases which negatived the right of the villagsrs of a Mandal to be heard by the Divisional Commissioner under Section 4(3) of the Act. But, in this case the facts are different. The respondents had successfully contested the elections under the earlier declaration made by the Deputy Commissioner and they were elected as memoers of the Mandal Panchayat in question. Pursuant to that declaration, they were eligible to contest from their respective wards and, therefore, by virtue of their success in the elections they have a vested right to continue as members of those Mandal Panchayats. So, without hearing them, the Divisional Commissioner could not have made the order under Section 4(3) of the Act which in effect has taken away their right to continue as Members of the Mandal Panchayat in question. A similar point came up for consideration in the Gauhatti High Court in Dt. Nirendra Mohan Guha v. State of Assam and Another (A.I.R, 1972 Gauhati, 104) under the provisions of the Assam Municipal Act, 1956. The Division Bench consisting of Goswami, C.J. as he then was has observed in para 12 of the judgment that where while admitting the writ petition challenging the notification fixing the date for by-election to a municipal ward, the by-election was not stayed, the member, elected during the writ proceeding, should be impleaded in the proceeding for, if the petition were allowed, his interests would be affected. The facts in that case may not be apposite for deciding the point in issue in this case. But, all the same the principle that could be discerned from that case is that during pendency of the proceedings before the Divisional Commissioner, if the impleaded respondents had been elected as the members of the mandal panchayat, their tight could not have been taken away, without hearing them, by an order made under Section 4(3) notwithstanding the fact that the Divisional Commissioner had been conferred with the power of making conditional legislation. Though Section 4(3) does not in terms make any provision to meet such a contingency, it is implicit in the very nature of the provisions, that rights of elected representatives under an earlier declaration under Sec. 4(1) and 4(2) which also amounts to conditional legislation, could not be taken away by a later order in the form of conditional legislation. So it was necessary for the Divisional Commissioner to issue notices to the impleaded respondents before making an order under Section 4(3) of the Act. Learned counsel for the petitioner in W.P. No. 2595/87 has also relied on a decision of this Court in Vishwanath N. v. State of Karnataka & Others (1972(2) Kar.L.J. 265). The Division Bench relying on certain decision in AIR 1969 A.P. 204 (B. Gopalaiah v . Government of Andhra Pradesh and Another) and AIR 1974 SC 1755 (General Manager, South Central Railway v. V.A.R. Siddhanti) has held that where the primary question involved in the writ petitions was the necessity for the appellants to pass the prescribed examinations on the date on which the respondents were promoted and the validity of the decision of the State Government refusing to consider the cases of the appellants on the ground that they had not passed the prescribed examinations, persons who had since been promoted on the basis of the impugned decision of the State Government cannot be said to be necessary parties. This Court relied on the observations made by the Supreme Court following the decision of Chinnappa Reddy, J. as he then was in B. Gopalaiah and Others v. Government of Andhra Pradesh & Another thus :