M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS petition is by the former President of the Taluk Development Board, malur in Kolar Dist. and has challenged the impugned order at Annexure-A to the petition. ( 2 ) THE petitioner was elected to that office in the year 1978. The Asst. Commissioner, kolar Sub-Division, by his order dt. 28. 11. 1981 directed that bye-election to the office of the President of the Taluk Development Board, Malur tlq. should be held at 12 noon on 28. 12. 1981 at the prescribed timings providing for receipt of nominations, scrutiny of nominations, withdrawal of candidature, publication of list of validly nominated candidates, conduct of bye-election in the event of contest, and declaration of results after the bye-election. ( 3 ) AGGRIEVED by that order, the petitioner approached this Court, inter alia contending that the calendar of events or notice of bye-election was illegal, contrary to law and therefore should be quashed and pending decision of this Court, the elections should be stayed. The grounds in support of the prayers in addition to the one mentioned above was that there was no vacancy in the office; of the President at all and in any event if there was vacancy, that vacancy had been declared contrary to the express provisions contained in sub-sec. (3) of S. 103 of the Village Panchayats and Local boards Act (hereinafter referred to as the Act) in as much as the Commissioner did not afford an opportunity to the petitioner of being heard before declaring the vacancy in the office of the President, on the alleged disqualification incurred by the petitioner by virtue of having been convicted by the district and Sessions Judge, Kolar, for having committed an offence punishable under S. 302 of IPC. He also alleged that the conviction had not become final and that the. High Court had allowed him on bail and an appeal was pending before the High Court against the conviction and sentence. This court on 24. 12. 1981 issued emergent notice, but made it clear that the elaction was taking place subject to the result of the writ petition. On 29. 3. 1982 an order was passed regarding an inter-locutory application. On 15. 11. 1s82, this Court directed that ias-I and II to be posted along with the main petition in, 'b' group on 22. 11. 1982. 1981 issued emergent notice, but made it clear that the elaction was taking place subject to the result of the writ petition. On 29. 3. 1982 an order was passed regarding an inter-locutory application. On 15. 11. 1s82, this Court directed that ias-I and II to be posted along with the main petition in, 'b' group on 22. 11. 1982. Since then it has been appearing in the list for hearing in 'b' group. After notice, IA-I was filed to implead one B. M. Krisnappa who had bejen elected! President pursuant to the notice or direction dt. 28. 11. 1981 as per Annexurer -A, i. e. , the impugned calendar of elections. The proposed respondent has entered appearance through counsel and while passing this order, he has been heard. In that view of the matter, IA-I should be deemed to have been allowed and the person mentioned therein impleaded as respondent No. 3. ( 4 ) THE facts are not in dispute. The calendar of events, at Annexure-A was indeed issued and prior to the date of issue, the petitioner had been convicted for an offence punishable under Sec. 302 of IPC by the Dist. and Sessions judge, Kolar. By then this Court had admitted the appeal of the petitioner and on 4th clay of Novr. 1981 had enlarged the petitioner on bail. Within three weeks thereafter the impugned notice of election was issued by the 1st respondent, Asst. Commissioner. The election has been held pursuant to Annexure-A and therefore the President elected is a necessary party, particularly in the light of the reservation made by this Court while issuing notice in the first instance. ( 5 ) THE first ground of attack by the petitioner on the validity of the impugned notice of election is that it is without jurisdiction inasmuch as there was no declaration of vacancy as required under sub-ses. (3) of S. 103 of the act, and even if one were to assume that there was a vacancy to the membership of Taluk Development Board on account of the conviction of the petitioner in terms of Cl. (a) of sub-sec. (1) of S. 103 of the Act, there was total non-compliance by the Deputy Commissioner in regard to the mandatory requirement of affording an opportunity to persons who had incurred the disqualification under sub-sec. (a) of sub-sec. (1) of S. 103 of the Act, there was total non-compliance by the Deputy Commissioner in regard to the mandatory requirement of affording an opportunity to persons who had incurred the disqualification under sub-sec. (1) of s. 103 before the, vacancy was declared and after hearing such member. ( 6 ) THE thrust of the argument is, if there was no valid declaration of vacancy in the eye of the law by the 2nd respondent, then the question of issuing a calender of events or notice of election to fill up that vacancy, in the instant case, the office of the President, cannot be said to be legal and in proper exercise of jurisdiction. ( 7 ) THAT the petitioner was not heard is not in dispute when the memo was issued by the 2nd respondent Deputy commissioner dt. 18th July 1981 declaring that the petitioner had incurred disqualification. This Memo was issued at the instance; and the advice received by the Deputy Commissioner from the Chief Administrative Officer, district and Sessions Court, Kolar. As a result of this, the, Vice President was put in charge until the Government on 3. 2. 1981 addressed the Deputy Commissioner to hold an election for the post of President of the Taluk Development Board, Kolar. ( 8 ) THE respondents have entered appearance through the learned Government Pleader Sri M. H. Motigi and made availbale the rqcords of the , case. No statement of objections as such has been filed by respondents 1 and 2. Respondent 3 has filed statement of objections. In that all that is stated is that it is a false assertion by the petitioner that this court passed an order while issuing notice that the election held pursuant to the said calender of events would be subject to the result of the' writ petition filed by the petitioner. Therefore he has prayed that the petition may be rejected. ( 9 ) HOWEVER, the learned counsel for respondent 3 tried to sus ain the election notice as well as the resultant election of the 3rd respondent to the office of the president, submitting merely legal arguments which are to the effect that it is not a mandatory requirement of sub-sec. (3) of S. 103 of the Act that the person to be declared as having incurred disqualification under sub-sec. (3) of S. 103 of the Act that the person to be declared as having incurred disqualification under sub-sec. (1) of S. 103 need necessarily be heard in all cases and/ therefore while the fact of his conviction under S. 302 I. P. C. was not in dispute, the petitioner could not assert that he ought to have been heard before the Memo was issued by the Deputy Commissioner declaring that he had ceased to be a member of the board. He has also stated, apart from this assertion made in the statement of objections, that in fact at the time when the order was made by this Court at the time of issuing notice regarding rule, he was not a party and therefore that order would not be binding on the 3rd respondent. ( 10 ) S. 103 (1) (A), according to the learned counsel for the 3rd respondent is a type of disqualification which in its very nature takes effect automatically the moment a competent court has convicted a member of the Taluk development Board for an offence involving moral turpitude carrying sentence of more than six months imprisonment on conviction. It is therefore his contention that the Deputy commissioner was left with no choice but to enforce the, disqualification by the necessary declaration or decision without even affording an opportunity of hearing to the person likely to be affected by such declaration or decision. In support of this argument he has relied upon the decision of the Division bench of the Allahabad High Court in mohammed Ibrahim v. Election Tribunal (1), Apparently that decision was rendered in the first appeal then provided under the Representation of the People Act, against the decision of the Tribunal in the election petition. In that decision what fell for consideration of the High Court was the scope of Art. 192. The disqualifications are enumerated in Art. 191. Art. 192 provides for the: authority who has to decide the question as to whether a member is disqualified or not and the manner in which that decision should be taken. In that decision what fell for consideration of the High Court was the scope of Art. 192. The disqualifications are enumerated in Art. 191. Art. 192 provides for the: authority who has to decide the question as to whether a member is disqualified or not and the manner in which that decision should be taken. Art. 192 reads as follows:-"decision on questions as to disqualifications of members :- (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Art. 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. " ( 11 ) SRI Mohandas Hegde, learned counsel appearing for the 3rd respondent, drew my attention to certain passages in the judgment by the then Chief justice of the Allahabad High Court which tend to indicate that the latter half of clause (2) of Art. 192 providing for consultation may be dispensed with by the Governor, when the fact of the disqualification under Art. 191 is not in dispute. In, other words, the seeking of the opinion of the Election commission should be read! as directory and not mandatory. But the decision itself does not state is so many words that it is directory and not mandatory. It is possible that in certain cages it may become unnecessary and an empty formality for the Governor to consult the election Commission before he takes the decision on the question of disqualification of a member in accordance with art. 192. But that wiu depend on the facts and circumstances of each case and not the nature of disqualification incurred. ( 12 ) IT is true that the Supreme court had occasion to consider similar language occurring in Art. 320 of the Constitution, sub-clause (3) of which provides that the Union Public service Commission or the State public Service Commission, as the case may be shall be consulted on certain matters enumerated therein, and held it to be directory and not mandatory. There cannot be any dispute about the law laid down by the Supreme Court in regard to sub-clause (3) of Art. 320 of the constitution. There cannot be any dispute about the law laid down by the Supreme Court in regard to sub-clause (3) of Art. 320 of the constitution. Nor can there be any quarrel with the ruling of the Division Bench of the Allahabad High court on the need for consultation in certain cases with the Election Commission when the Governor takes a diecision in regard to the disqualification incurred by a member of the State legislature. The difficulty in accepting the argument is the language employed in sub-sec. (1) of S. 103 of the village Panchayat and Loca Boards Act, which reads as follows:-"103 (3) : If any question arises whether a vacancy hap occurred under sub-section (2), the question, shall be referred for the decision of the Commissioner and the Commissioner shall after giving an opportunity to the member concerned to be heard, decide the question. "the language of the section makes no mistake about an opportunity being afforded to the person who is going to be affected! by the declaration of disqualification or a decision in regard to the disqualification which the Deputy commissioner is to make. The conviction by a Court is final when the highest Court in the land has confirmed the conviction or appeal to such higher Court as the law may provide has not been lodged. In the instant case, it is clear from the records of the writ petition itself that the petitioner was enlarged on bail by the Division, bench of this Court and his appeal also was ultimately successful, though it was after the filing of the writ petition. ( 13 ) NOTHING in the scope of S. 103 as whole is indicative that the decision and declaration which the Deputy commissioner is to make under sub-sec. (3) thereof gives him any discretion in the matter of affording an opportunity to the member sought to be disqualified on the ground of any one of the disqualifications incurred under sub-sec. (1) of s. 103 of the Act. In the instant case the minimum requirement even after conviction by the Sessions Court was that the Commissioner should have issued notice to the petitioner before deciding the question of his disqualification. It really becomes immaterial having regard to the plain language of sub-sec. (1) of s. 103 of the Act. In the instant case the minimum requirement even after conviction by the Sessions Court was that the Commissioner should have issued notice to the petitioner before deciding the question of his disqualification. It really becomes immaterial having regard to the plain language of sub-sec. (3) of S. 103 of the Act, that whether a member concerned had in fact a tenable cause to be shown even when that person is accused of such a serious crime and is convicted by the Sessions Court. As i have already pointed out that conviction is not final till the time allowed in law for appealing against the sentence either has elapsed or no appeal has been preferred, or the appellate court has set aside the conviction. It is possible that the petitioner in the instant case if given the opportunity would have pointed out to the Commissioner that he was going to appeal against the conviction and that the commissioner should defer the decision till the appellate, court had decided his appeal. The Commissioner may accept that explanation or he may not accept that explanation, but the right to representation cannot be denied merely because the conviction was by the Sessions court. ( 14 ) IN this view of the matter, the fact that he was not afforded an opportunity before, the, decision was taken to disqualify him from the membership and consequently the presidentship of the Taluk Board is clearly untenable and therefore the decision of the 2nd respondent Commissioner, as well as the election of the 3rd Respondent is also illegal and they are to be quashed. ( 15 ) IT may bq noticed) thait in the case, of Vidyacharan Shukla vs. Purshottam lal Kausik (2 ). the Supreme court had occasion to consider an identical question arising under the Representation of the People Act. On the, date the appellant therein filed his nomination for the election to the Lok Sabha, he was convicted of an offence by a competent Court. Therefore the objection was taken that his nomination was invalid. But nevertheless his nomination was accepted and he contested the election and won. The high Court, took the view that the nomination accepted was improper, by virtue of the conviction as he had disqualified himself to offer himself as a candidate to the Lok Sabha. Therefore the objection was taken that his nomination was invalid. But nevertheless his nomination was accepted and he contested the election and won. The high Court, took the view that the nomination accepted was improper, by virtue of the conviction as he had disqualified himself to offer himself as a candidate to the Lok Sabha. By the time the matter came up before, the high Court, the Supreme Court had set aside the conviction. In that context the Supreme Court had this to say: -"the acquittal of the returned candidate in appeal prior to the pronouncement of the judgment by the high Court in the election petition filed against such candidate, had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer". ( 16 ) IN effect the ruling is directly on the point that the effect of acquittal by a superior Court is to wipe out the conviction from the date of conviction. ( 17 ) IN the result having regard to the undisputed facts of the case, the petitioner was never disqualified when the decision was rendered by the 2nd respondent and when the calender of events was issued on 28. 11. 1981 by the 1st respondent for the election of the President at which the 3rd respontent was elected. ( 18 ) MR. Hegde, learned counsel appearing for the 3rd respondent has contended that notwithstanding the fact of acquittal and notwithstanding that no opportunity was afforded to the petitioner, the election of the 3rd respondent cannot in these proceedings be set aside, merely because he was not a party to the initial order passed by this Court at the time of issuing notice. In my view that is not tenable. When this Court reserves for itself liberty to act freely and in the cause of justice, the power to issue appropriate direction, it is unnecessary that the person who is likely to be affected by such directions was or was not before Court when the reservation was made by the court in its own behalf. When this Court reserves for itself liberty to act freely and in the cause of justice, the power to issue appropriate direction, it is unnecessary that the person who is likely to be affected by such directions was or was not before Court when the reservation was made by the court in its own behalf. The denial in the affidavit that such reservation was made clearly shows that 3rd respondent aftee coming on record had not even taken care to see what the order was when notice was ordered to respondents-1 and 2. I therefore see no substance in the contention and therefore it is rejected. ( 19 ) MR. Hegde has still persisted that the election is not liable to be set aside having regard to the provisions made for setting aside the elections in the Taluk Boards President and Vice presidents Election Rules 1979. ( 20 ) FIRSTLY, he has drawn my attention to Rule 15 of the said rules which provides for the elected President to assume office immediately on publication of the result by the Commissioner in accordance with Rule 12 of the said rules. Rule 12 of the said rules provides for the Officer to announce tha result of the election, publish the same by affixing a copy in the Taluk Development Board Office and intimate the results to the Commissioner who should notify the same in the Gazette. Similarly rule 17 provides for challenging the election of a President by a member of the Board. Therefore it is contended that except in accordance with the rules, the election of the 3rd respondent cannot be set aside by any order of this Court in these, proceedings. ( 21 ) I am afraid this argument is misconceived. I have already adverted to the reservation made by this court while issuing notice that the election which was to be held two days thereafter was subject to the result of the writ petition. There cannot be any fetters on the reserveation of the power to be exercised by this court under Art. 226 of the Constitution, particularly not with reference to the rule making powers of the Government under the Act. That power reserved for this Court is absolute in the exercise of its power under Art. 226 in furtherance of justice. ( 22 ) I have already given the reasons why the election was invalid. That power reserved for this Court is absolute in the exercise of its power under Art. 226 in furtherance of justice. ( 22 ) I have already given the reasons why the election was invalid. Therefore the petitioner must succeed. This is npt an election petition filed by the petitioner. This is a writ petition under Art. 226 of the Constitution for quashing the calendar of events which was without jurisdiction. As already observed an election which has taken place subject to the result of the writ petition cannot be said to be outside the purview of Art. 226. Therefore the respondent's election must be held to be bad. If the office of the president had not become vacant at all having regard to the ruling in the case of vidya Charan Shukla vs. Purushottam lal Kaushik. (2) then the election held to a non-vacant post is ab-initio void and the candidate cannot claim any better right than the one who has remained in the post right through in the eye of law. ( 23 ) IN the result, Annexure -A dated 28. 11. 1981 as also the declaration made by the Deputy Commissioner deciding the vacancy that had occurred dated 18. 7. 1981 are quashed as bad in law. ( 24 ) THE petitioner is entitled to continue as the President of the Taluk development Board, Malur until it comes to an end by operation of law or otherwise. In the circumstances of the case there will be no order as to costs. --- *** --- .