H MADHAPPA Vs. DIVISIONAL COMMR

JUDGEMENT

(1.) Whether a seat that becomes vacant when a person elected from more than one Constituency, elects to serve from one of the Constituencies, can be filled up by election or by appointment is the short and interesting question that arises for determination in this writ petition.

(2.) At Hanakere, there is a group village panchayat called, as Kanaka Group Panchayat (hereinafter referred to as 'the Panchayat') constituted and functioning under the provisions of the Karrnataka Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as 'the Act.') General elections to the said panchayat were held on 8-7-1978. One Sri. H. L. Putaiah had contested from two Constituencies and he was declared duly elected from both the Constituencies. On 12-7-1978 Shri. H. L. Puttaiah addressed a letter or issued notice in writing signed by him to the appropriate Assistant Commissioner choosing to continue as a member from one of the constituencies Only viz., Block No. 3. He therefore, chose not to continue as a member from Block No. 1. On receipt of the aforesaid notice given by Sri. H. L. Puttaiah, the Assistant Commissioner reported the same to the Deputy Commissioner, Mandya. He appears to have suggested to the Deputy Commissioner, Mandya (hereinafter referred as the D. C.) to appoint the petitioner as a member to the vacant seat of Sri H. L. Puttaiah. On 16/18-8-1978 the Deputy Commissioner purporting to act under sub-section (5) of S. 5 of the Act appointed the petitioner in the vacant seat of Sri. H. L. Puttaiah as a member of the Hanakere Village Panchayat, the validity of which was challenged by respondents 3 and 4 under Section 207 of the Act before the Divisional Commissioner, Mysore (hereinafter referred to as the Commissioner). On 19-12-1978 the Commissioner has allowed the revision petition filed by respondents 3 and 4 and has cancelled the appointment made by the D.C. In this writ Petition, the petitioner has challenged the order dated 19-12-1978 of the Commissioner,

(3.) Sri H. K. Vasudeva Reddy, learned counsel for the petitioner strenuously contended that the appointment of the petitioner made by the D.C. was really referable to the powers conferred on him by the first proviso to S. 35 of the Act and the same was a valid appointment and the view taken by the Commissioner to the contrary is illegal Learned counsel for the respondents refuted the contention of Sri. H. K. Vasudeva Reddy and supported the order of the Commissioner. .