( 1 ) DURING the elections held in 1968 to the Village Panchayat of Narayanagundahalli in Holalkere Taluk, Chitradurga District, the Petitioner was elected as a member of the Village Panchayat. Later he appears to have been elected as Chairman of the Village Panchayat also. The 2nd respodent was elected as a member of the Village Panchayat In 1969. On 3rd october 1969 the 2nd respondent made an application to the Deputy Commissioner chitradurga District under S. 11 (3) of the Village Panchayat and Local Boards Act, 1959 (hereinafter referred to as the Act) alleging that the petitioner who was elected as a member of the Village Panchayat was drawing a 'potige' from Government as Gumsta-Patel for the past ten years. This amounted to the petitioner holding an office of profit under the State Government which constitutes a disqualification under the provisions of S. 11 (1) (j) of the Act. The 2nd respondent made an application praying for action being taken against the petitioner under S. 11 (3) of the act The Deputy Commissioner, Chitradurga District who is impleaded as the 1st respondent in this petition allowed the 2nd respondent's application and declared that the seat of the petitioner as a member of Village panchat at has become vacant and that the same should be filled up as contemplated under S. 35 of the Act. In respect of this order of the 1st respondent the petitioner has filed this petition under Art. 226 of the Constitution praying for the issue of a writ of certiorari quashing the order dated 7-1-1970 made by the 1st respondent and marked Ext. A. In this petition. ( 2 ) IT is undisputed that the petitioner was a Gumasta-Patel even prior to the date of his election as a member of the Village Panchayat of narayanagundanahalli in 1968. Therefore the alleged disqualification was existing on the date of his election, but his election was not questioned by any election petition under S. 13 of the Act on the ground that he was disqualified to be chosen as a member. The disqualification now pleaded against the petitioner is not a disqualification that has come into existence subsequent to his election as a member of the Village Panchayat. The disqualification now pleaded against the petitioner is not a disqualification that has come into existence subsequent to his election as a member of the Village Panchayat. So the question that arises in this petition is whether the 1st respondent had jurisdiction to pass any order under S. 11 (3) of the Act, on the ground that the petitioner is disqualified to be a member of the Village panchayat and therefore his seat has become vacant. The decisions in Mahipatrao Balakrishna Rao v. Bharmagouda Venkanagouda Patil, (1964) 2 Mys. L. J. 442, and the decision of the Supreme Court in Election Commission v. Venkata rao, AIR 1953 SC 210 which has been followed by this Court bear on the point. The decisions referred to above clearly indicate that what is contemplated under S. 11 (2) of the Act is a disqualification that comes into existence subsequent to the member becoming a member of the Village Panchayat. It is only the supervening disqualification and not an existing disqualification that is contemplated under S. 11 (2) of the Act. Under S. 11 (3) of the Act, the Deputy Commissioner is vested with the power to decide the question whether a vacancy has occurred under sub-sec. (2) of the Act. Clause (i) of sub-sec. (2) of S. 11 which is relevant for the purpose of this petition reads as follows:"11. Disqualification for membership: - (1 ). . . . . . . . . . . . . . . . . (2) If a member of a Panchayat (i) becomes subject to any of the disqulifications mentioned in sub-section (1), or. . . . . . . . . . . . . . . . . his seat shall thereupon become vacant. "the relevant portion of sub-sec. (1) is clause (j) to sub-sec. (1) of S. ll. It reads as hereunder:" (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat. x x x x x (j) If he holds any office of profit under the Government of India, or the Government of Mysore. "these provisions have been referred to and dealt with in the decision of this Courrt in Mahipatrao Balakrishna Rao's case (1), It was the case of a member being nominated to Village Panchayat. x x x x x (j) If he holds any office of profit under the Government of India, or the Government of Mysore. "these provisions have been referred to and dealt with in the decision of this Courrt in Mahipatrao Balakrishna Rao's case (1), It was the case of a member being nominated to Village Panchayat. It was contended that the petitioner therein was disqualified to be a member of the Panchayat as he held an office of profit under the Government of India on the date of nomination. This Court has observed as follows:"now the question for our decision is whether it can be said that the petitioner "has become subject to any disqualification mentioned in sub-sec. (1)". As mentioned earlier he was disqualified to be a member even on the date he was nominated. Therefore, it cannot be said that he had incurred any disqualification, which, in our opinion, is the requirement of sub-sec. (2) of S. 11, after he becomes a member of the panchayat. Sub-sec. (3) of S. 11 makes it clear that only disqualifications incurred by a member on and after he becomes a member could be enquired into by the Deputy Commissioner. The rule laid down by the Supreme Court in Election Commission of India v. Saka venkata Rao (AIR. 1953 SC. 210), fully applies to the facts of this case. We are unable to agree with the learned Government Pleader that in view of the language of S. ll (1) which provides that a person shall be disqualified for being chosen as and for being member, the disqualification is a continuing disqualification and therefore, the said disqualification falls within the ambit of S. 11 (2) and such disqualification can be dealt with under S. 11 (3 ). This argument is wholly unavailable in view of the decision in Saka Venat Rao's case. " ( 3 ) IN Saka Venkata Rao's case (2) the Supreme Court examined the scope of Arts. 190 (3) and 192 (1) of the Constitution of India. The provisions of Art. 190 (3) is identical with the provisions of S. 11 (2) (i) of the act. Art 192 of the Constitution corresponds to S. 11 (3) of the Act. While referring to these provisions the Supreme Court makes the following observation. "it was said that on the view that Arts. The provisions of Art. 190 (3) is identical with the provisions of S. 11 (2) (i) of the act. Art 192 of the Constitution corresponds to S. 11 (3) of the Act. While referring to these provisions the Supreme Court makes the following observation. "it was said that on the view that Arts. 190 (3) and 192 (1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under Art. 329 of the Constitution read with S. 100 of the Representation of the People Act. 1951. Tf this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions On the other hand the attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under Art. 192 and bv the Election Tribunal inquiring into an election petition under S. 100 of the parliamentary statute referred to above. "these observations also apply to the present case Further in paragraph 16 of the judgment the Supreme Court states. "for the reasons indicated we agree with the learned Judge below in holding that Arts. 190 (3) and 192 (1) are applicable onlv to disaualifications to which a member becomes subject after he is elected as such, and that neither Ihe Governor nor the Commission has jurisdiction to enquire into the respondent's disqualification which arose long before his election. "this categorical statement of law by the Supreme Court clearly indicates that the order of the 1st respondent in this writ petition is unsustainable. ( 4 ) SHRI Maheswarappa, learned Counsel appearing on behalf of the second respondent brought to our notice the decision of this Court in junjappa Doddabasanappa Hoagappaevar v. Nadiappa Shivappa Darur, (1968) 2 Mys. LJ. 624. This decision supports the contention of Shri Maheswarappa that the Deputy Commissioner has jurisdiction to exercise powers under S. 11 (2) of the Act. It must be noticed that this decision is contrary to the law laid down by the Supreme Couri in Election Commission v Venkata Rao (2) and Mahipatrao v Bharmagouda (1 ). LJ. 624. This decision supports the contention of Shri Maheswarappa that the Deputy Commissioner has jurisdiction to exercise powers under S. 11 (2) of the Act. It must be noticed that this decision is contrary to the law laid down by the Supreme Couri in Election Commission v Venkata Rao (2) and Mahipatrao v Bharmagouda (1 ). It is unfortunate that the two decisions referred to above were not brought to the notice of this Court when the decision in 1968 (2) Mysore Law Journal, page 624 (4) was rendered. In view of the law as laid down by the Supreme Court in 1953 SC page 210, we cannot follow the decision in 1968 (2) Mysore Law Journal page 624 (4 ). The law as laid down in Election Commission v. Saka Venkata Rao (2) is followed by this Court in Mahipatrao v. Bharmagouda (1 ). ( 5 ) FOLLOWING the two decisions mentioned above, we allow this writ petition and issue a writ of certiorari quashing the order dated 7/1/1970 passed by the 1st respondent in Case No. CDF (4) VPC. PR. 136/69-70. There will be no order as to costs. --- *** --- .