NANDARAYAPPA Vs. DIRECTOR OF AGRICULTURAL PRODUCE BANGALORE

JUDGEMENT

(1.) I have heard the petitioner's learned Advocate and learned government advocate. Mr. Patil who represents the petitioner has challenged the issuance of the show-cause notice against the petitioner on a pure point of law. He seeks to place reliance on an earlier decision of this court in the case of Yeli Benkappa v Sadashivappa and others, wherein this court had occasion to lay down that the jurisdiction of the director to enquire into the continuance of an elected member of the apmc arises only in relation to post-election disqualification. Mr. Patil produces a copy of the complaint dated 13-6-1997 wherein it has been contended that the petitioner is a trader and that he is therefore disqualified from contesting from the agriculturists constituency. Mr. Patil points out that an election petition has been filed for purposes of deciding on the validity of his client's election, that an application for interim relief was refused in that case and that thereafter, a new front is opened by filing the application before the director. His submission is that the court is seized of the matter and since the ground relates to an alleged disqualification that was incurred prior to the holding of an election, that it is only the forum before which the election petition is filed and is pending, which would have the jurisdiction to set aside the election. He submits that to this extent, the show-cause notice issued is bad and is liable to be quashed.

(2.) THE learned government Advocate has resisted the grant of any relief because he points out that if a show-cause notice has been issued, the petitioner could raise his contentions before the director and await appropriate orders and that it is not permissible to move this court by way of a petition under article 226 of the Constitution against the mere issuance of a show-cause notice. Normally, I would have upheld this contention except for the fact that if the issuance of the show-cause notice is inherently bad in law, as is the submission of Mr. Patil, then there would have been some justification for this court to quash that notice because the petitioner may be justified in pointing out that the action is wholly without jurisdiction.

(3.) THE learned government Advocate then drew my attention to an earlier decision of this court in W. P. No. 14978 of 1997, dated 12-6-1997, wherein this court had granted liberty to the petitioner to point out the existence of the election petition to the director and to ask for appropriate orders and if the director insisted on proceeding and if the director passed an adverse Order, that it should not be given effect to for four weeks to enable the petitioner to re-approach this court. He submitted that similar orders should be passed in this case. The difference between the two cases is that on the last occasion, the nature of the dispute was not pointed out to this court nor was it pointed out that it was a pre-election disqualification that was alleged and above all, the fact that under Section 17 the director would lack jurisdiction if it is a pre-election disqualification was also not in issue. It is in this background that some distinction will have to be made between the two cases and the earlier order does not necessarily have to be followed.