G.R. Kumar vs Assistant Commissioner

Heard the learned counsel for the petitioner and the learned counsel for the Caveator and the learned High Court Govt. Pleader.

Learned High Court Govt. Pleader accepts notice on behalf of the first respondent. The petitioner is before this court being aggrieved by the

meeting notice issued by the first respondent, produced and marked as Annexure-C to the writ petition and sought for issuance of a writ of certiorari

for the same.

The short ground on which the petition canvassed is that the meeting notice issued by the first respondent calling for meeting to be held on

27.06.2019 is vitiated as three of the members namely respondent Nos.7, 8 and 9 stand disqualified and are deemed to have vacated their office on

account of though having failed to attend to the Panchayat meetings held on 02.12.2016, 01.02.2017, 17.07.2017 etc. That in this regard the petitioner

has also made a representation vide Annexure-A and the same is pending. That despite the said complaint the first respondent erred in conducting the

meeting to consider the motion of no confidence to be held on 27.06.2019. Learned counsel for the petitioner would contend that the motion moved by

the three disqualified members is illegal. Learned counsel would invite the attention of the court to Section 13 of The Karnataka Gram Swaraj and

Panchayat Raj Act, 1993 (for short ‘the Act’) which reads as under:-

“13. Vacation of seat by members.-(1) If a member of a Grama Panchayat,-

(a) is or becomes subject to any of the disqualifications mentioned in Section 12 ; or

(b) votes or takes part in discussion in contravention of the provisions of sub-section (4) of Section 53; or

[(c) *****;] his seat shall be deemed to be or to have become, as the case may be, vacant:

Provided that where an application is made by a member to the Grama Panchayat for leave to absent himself and the Grama Panchayat fails to

inform the applicant of its decision on the application within a period of one month from the date of the application, the leave applied for shall be

deemed to have been granted by the Grama Panchayat.

(2) If any question arises as to whether a person is, or has become subject to disqualification under sub-section (1), the [State Election Commission]

may [either suo moto or on a report made to it] and after giving an opportunity to the person concerned of being heard, decide the question.â€​

The learned counsel would contend that in the light of the language used by the legislature the seats held by such persons is deemed to have

become vacant. In the opinion of this court the case canvassed by the petitioner is contradicted by sub-section (2) of Section-13 of the Act itself. A

bare perusal of the provision clearly pre-supposes

a finding by the Election Commission that the candidate has suffered a disqualification. Admittedly, there is no application or complaint preferred by

any one much less the petitioner to the State Election Commission which is the competent authority under Section 13 (2) of the Act to render a finding

on the issue as to whether the person has suffered a disqualification under sub-section (1) of Section 13 of the Act. In the absence of such a finding

the contention that the members stand disqualified cannot be appreciated and the same requires to be rejected. Accordingly, the said contention is

rejected. In that view of the matter, the petition must necessarily fail. Accordingly, petition stands rejected.

There shall be no order as to costs.

Learned counsel for the petitioner submits that liberty may be granted to the petitioner to approach the competent authority under Section 13(2) of

the Act. The right is reserved by the statute and no special permission need to be granted by this court. It is needless to state that it is open to the

petitioner to avail such remedies that are available to him under law.

It is further clarified that dismissal of the writ petition will not come in the way of the competent authority adjudicating the fact of disqualification if

complained of by the petitioner.

There shall be no order as to costs.