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1989 DIGILAW 156 (KAR)

MAHADEVAIAH v. DEPUTY COMMISSIONER, TUMKUR

1989-05-04

K.A.SWAMI

body1989
SWAMI, J. ( 1 ) IN this petition under Articles 226 and 221 of the Constitution, the petitioner has sought for quashing the order dated 22-12-1988 passed by the Deputy Commissioner, tumkur in No. Elecn. Dis. 60/88-89 Annexure-E. The Deputy Commissioner has held that the 4th respondent cannot at all be disqualified under Section 12 (1) (iii) of Karnataka act No. 20/1985 as she has not absented for more than three consecutive ordinary meetings of the Mandal Panchayat without the leave of the Mandal Panchayat. ( 2 ) SRI B. Rudragowda, learned counsel for the petitioner contends that Respondent No. 4 had remained absent from the Mandal for more than four months, therefore, the latter portion of Section 12 (1) (iii) of Karnataka act No. 20/1985 is attracted. As such the deputy Commissioner ought to have declared that the seat has become vacant. ( 3 ) IT is not possible to accept this contention. The Mandal Panchayat itself in its resolution dated 18-10-1988 produced as annexure-D has confined its decision to the absence of the 4th respondent from three consecutive ordinary meetings of the Mandal panchayat. It is this resolution which was sent to the Deputy Commissioner for disqualifying the 4th respondent. The Deputy commissioner on considering Section 12 (i) (iii) of Karnataka Act No. 20/1985 has held that as the 4th respondent has remained absent without the leave of the Mandal panchayat for only three consecutive ordinary meetings of the Mandal Panchayat, she cannot be disqualified from being a Member of the Mandal Panchayat and her seat cannot be declared to have become vacant. Section 12 (1) (iii) of the Karnataka Zilla parishads, Taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act, 1983 (Karnataka Act No. 20/1985) reads thus: 12. Disqualification for Members.- (1) If a member of a Mandal Panchayat.-I) xx xx ii) xx xx iii) absents himself for more than three consecutive ordinary meetings of the Mandal panchayat without the leave of the Mandal Panchayat or is absent from the Mandal for more than four consecutive months, his seat shall be deemed to be or to have become, as the case may be, vacant. " (Emphasis supplied) ( 4 ) FROM the underlined portion of the aforesaid provision, it is clear that it is only when a member of the Mandal Panchayat remains absent without the leave of the Mandal panchayat for more than three consecutive ordinary meetings of the Mandal panchayat, then only he/she can be disqualified and his or her seat shall be deemed to be or to have become vacant. If a member remains absent only for three consecutive ordinary meetings of the Mandal Panchayat without the leave of the Mandal Panchayat, such a member cannot be disqualified under section 12 (1) (iii) of Karnataka Act 20/1985. ( 5 ) THE learned counsel for the petitioner has placed reliance on a decision of this court in B. Saraswathi Shedthi v The Deputy commissioner And Another (1988 (2) Bangalore law Journal, page 360 W. P. No. 11006/88 decided on 18-8-1988 ). No doubt in the said decision, the petitioner therein who was a member of the Mandal Panchayat concerned therein remained absent for three consecutive ordinary meetings of the Mandal panchayat without the leave of the Mandal panchayat and the Deputy Commissioner declared that her seat had become vacant on account of the fact that she remained absent for three consecutive ordinary meetings of the Mandal Panchayat without the leave of the Mandal Panchayat. This court has, on quoting Section 12 (i) (iii) of Karnataka Act no. 20/1985, has held as follows: "from the above, it is clear that by a legal fiction disqualification occurs automatically if there is absence from the Mandal or from the meetings of the Mandal panchayat in the manner specified in clause (iii) of sub-section (1) of Section 12 of the Act. Since the factum of absence is not in dispute, the order is not assilable. Writ Petition is therefore rejected. " ( 6 ) THUS this court has affirmed the order of the Deputy Commissioner disqualifying a member of the Mandal Panchayat who had remained absent for three consecutive ordinary meetings of the Mandal Panchayat without the leave of the Mandal Panchayat. But in my view, in the said decision, the attention of the court had not been drawn to the words 'for more than three' occurring in section 12 (1) (iii) of the Karnataka Act No. 29/1985. But in my view, in the said decision, the attention of the court had not been drawn to the words 'for more than three' occurring in section 12 (1) (iii) of the Karnataka Act No. 29/1985. In my view, the decision is PER INCURIAM, as, such it cannot be considered to be a binding precedent. A decision rendered contrary to the positive provisions of law or without taking into consideration the effect of such a provision cannot be a binding precedent because it is the statute that prevails. Hence I am of the view that in the light of the provisions contained in Section 12 (1) (iii) of Karnataka Act No. 20/1985 which specifically provides that absence for more than three consecutive ordinary meetings of the Mandal Panchayat without the leave of the Mandal Panchayat alone disqualifies a Member from being a Member of the Mandal Panchayat. As in the instant case, the 4th respondent has not remained absent for more than three consecutive ordinary meetings of the Mandal Panchayat, the order passed by the Deputy Commissioner refusing to disqualify the 4th respondent cannot be held to be erroneous. In this case as already printed out, we are not concerned with the latter portion of Section 12 (1) (iii) of Karnataka Act No. 20/85. ( 7 ) IT is next contended that no opportunity was afforded to the Mandal Panchayat before passing the impugned order, hence the impugned order is passed in violation of the principles of natural justice. In view of the specific resolution of the Mandal panchayat produced as Annexure-D and the undisputed facts and circumstances of the case that the 4th respondent remained absent only for three consecutive ordinary meetings of the Mandal Panchayat, no useful purpose is served by interfering with the order of the Deputy Commissioner on the aforesaid ground. ( 8 ) FOR the reasons stated above, I do not see any ground to issue rule. The petition is accordingly rejected. --- *** --- .