Sri Rajkumara Neelakantharaya Desai vs The Secretary, Department Rural Development and Panchayat Raj and Others

H.G. Ramesh, J.—In this writ petition, the Petitioner is challenging the order dated 12.6.2008 (Annexure-D) passed by Respondent No. 1-the Secretary, Department of Rural Development and Panchayath Raj, Bangalore, disqualifying the Petitioner from the membership of Biraldinni Gram Panchayath, Basavanbagewadi Taluk, Bijapur District, on the ground that he had incurred disqualification u/s 12(h) of the Karnataka Panchayat Raj Act, 1993 (''the Act'').

I have heard the learned Counsel appearing for the parties and perused the impugned order at Annexure-D.

In my opinion, the order passed by Respondent No. 1 is without the authority of law as the appropriate authority to determine the disqualification incurred u/s 12 of the Act is the State Election Commission as provided u/s 13(2) of the Act. This becomes evident by a perusal of Sections 12 and 13 of the Act. It is relevant to refer to Section 13 of the Act; relevant portion of which reads as follows:

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

(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 motu or on a report made to it and after giving an opportunity to the person concerned of being heard, decide the question.

As per Section 13(2) of the Act referred to above, if any question arises as to whether a person is or has become subject to any of the disqualifications u/s 12 of the Act; the appropriate authority to decide the said question is the State Election Commission. The contention that the Government has the power u/s 43-A of the Act is rejected.

Section 43-A of the Act does not confer power on the Government to determine as to whether any person has incurred any of the disqualifications u/s 12 of the Act; that power is exclusively conferred on the State Election Commission u/s 13(2) of the Act. Accordingly, I make the following order:

The impugned order dated 12.6.2008 (Annexure-D) passed by Respondent No. 1 is quashed.

Petition allowed.