SHRIMANTH RAMAGOWDA PATIL Vs. TUKARAM BHARAMANNA BASRIKATTI

JUDGEMENT

(1.) On 14-7-1988, I had recorded as follows :

(2.) Matter coming up to-day for preliminary hearing, it is unnecessary to examine the first question as a learned single Judge of this court has already taken the view that the Writ Petition alone is maintainable having regard to the expression 'order shall be final' in sub-section (2) of Section 19 of the Karnataka Zilla Parishads, Taluk Panchayats Samithis, Mandal Panchayats and Nyaya Panchayats Act. Undoubtedly, so far as my own reason is concerned, this will lead to the anamoly in that this Court has entertained Civil Revision Petitions under Section 115 C P.C. in respect of interlocutory orders made by the Munsiffs decising election petitions concerning Mandal Panchayats under the Act. I do not wish to say anything more about it in this Writ Petition.

(3.) The next question which falls for determination is also not one which gives much difficulty to answer. In more than one Writ Petition, I have taken, the view that participation of members nominated by the Adhyaksha of the Zilla Parishad in exercise of the delegated authority under sub-section (3) of Sec. 5 of the Act would render those votes invalid having regard to the fact that the correct position in law is that the Adhyaksha cannot be delega- ted with the authority in the first place, much less Zilla Parishad had the power to delegate that authority. Therefore, having regard to the clear decision of the Division Bench of this Court in Writ Appeal 1942 of 1987 and connected matters, nomination made would be void ab-initio. Therefore certain members participating at the first meeting convened for purpose of electing Pradhan would amount to participation by members who are strangers to the Mandal Panchayat and as such their votes should not be counted in favour of one of the other contestant. Proper directions also have been given in those cases either to make a proper declaration or to hold a fresh election. But those decisions were rendered under Article 226 where the declaration was sought as no election petition as such had been filed. In the instant case, Petition is directed against the order of the Munsiff entertaining election petition and holding in view of the decision of this Court in Writ Appeals 1942 and 1943 and connected matters that the participation of illegally nominated members materially affected the result and therefore, the election should be set aside as such a ground was taken in the election petition by the respondent. Therefore I cannot take any different view in answering the second question.