H M KRISHNA MURTHY Vs. DEPUTY COMMISSIONER CHICKMAGALUR

JUDGEMENT

(1.) In this writ petition, the petitioner who is the elected Pradhan or who was elected Upa-Pradhan of Niluvagilu Mandal Panchayat, is aggrieved by the order passed by the Deputy Commissioner, Chickmagalur, respondent-1 herein as at Annexure-B to the petition by which he has appointed the Assistant Commissioner, Chickmagalur District as the Administrator in the absence of Pradhan and Upa-Pradhan in purported exercise of his power under Sec. 45 of the Karnataka Zilla Parishads, Taluk Panchayath Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Act). Therefore, the legality of the same is questioned by the petitioner in this writ petition inter alia on the ground that what was questioned in W.P. No. 5673/1987 disposed of on 16th February, 1989 was the nomination made by the Zilla Parishad in exercise of its power under Sub-sec. (3) of Sec. 5 of the Act and purporting to follow the decision rendered in the case of State of Karnataka and others V Ningappa Ramachandra Gurav and others [1988(1) Karnataka Law Journal, 466], the learned single Judge of this Court quashed the nominations as well as the notification published by the Deputy Commissioner under sub-sec. (9) of Sec. 5 of the Act.

(2.) Unfortunately, nobody appears to have preferred an appeal against that order questioning its correctness either on facts or on questions of law- Therefore, the Deputy Commissioner has understood that order of this Court in W.P. No. 5673/1987 to draw the conclusion that the office of the Pradhan and Upa-Pradhan have fallen vacant and there is none to function in that capacity for the Mandal Panchayat in question. He has, therefore, exercised his powers under Sec. 45 of the Act. If the reasoning of the Deputy Commissoner is correct, that the quashing of the notification resulted in there being vacancies in the office of the Pradhan and Upa-Pradhan, than that reasoning would be erroneous because the notification of the Deputy Commissioner questioned in the aforementioned writ petition was not that of the Pradhan and Upa-Pradhan but the list of nominated members of the Niluvagilu Mandal Panchayat. If that was quashed it only meant that the notification published by the Deputy Commissioner was quashed and no more. The Mandal Panchayat does not stand constituted by virtue of the notification published by the Dy. Commissioner. It stands constituted in terms of sub-s. (8) of Sec. 5 of the Act as soon as two thirds of the number of members designated for that Mandal are declared elected. Therefore, quashing of the notification under sub-sec. (9) of Sec. 5 of the Act did not have the effect of dissolving the Mandal or unseating the Pradhan or Upa-Pradhan who were elected in accordance with the provisions of the Act and the Rules framed thereunder.

(3.) Having regard to the over-riding effect of sub-sec. (8) of Sec. 5 of the Act which provides that notwithstanding anything contained in sub-sees. (1) and (7), but subject to any general or special orders of the Government, where two-thirds of the total number of members of any Mandal Panchayat have been elected, the Mandal Panchayat shall be deemed to have been duly constituted under this Act, publication under sub sec. (9) of Sec, 5 of the Act is a mere administrative act to be performed by the Deputy Commissioner for information of the public as to who the members of the panchayat are and no more. If it does not have the effect of constituting the Mandal Panchayat even if the notification is struck down for any reason, it does not have the effect of dissolving the Mandal Panchayat which is otherwise constituted duly under the provisions of sub-sec. (8) of Sec. 5 of the Act.