ORDER
Rajendra Babu, J.
1. This matter had been taken up for final hearing by consent of the learned Counsel on both sides on 22-2-1990. The matter was heard in part and again it was called on 26-2-1990. On that date the matter was heard further and was reserved for pronouncement of orders today. However, the learned Counsel for the petitioner now submitted that he has some more submissions to make in the matter. He was accordingly permitted to do so and the matter was heard further.
2. The petitioner contested the election to the Mandal Panchayat of Thoppanahally from Chamanahally constituency and was elected as a member of the said Mandal Panchayat. The petitioner is working as an Accountant in Bharath Earth Movers Limited (BEML), Kotar Gold Fields. After his election to the Mandal Panchayat the petitioner did not resign from the post of Accountant in BEML, but continued to be a member of the Mandal Panchayat and also as an Accountant, in BEML. The second respondent in the Writ Petition brought to the notice of the Deputy Commissioner, respondent No. 1, under Section 12(2) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the ‘Act’) the fact of petitioner continuing himself, in the dual role and sought for a declaration that he was not qualified to continue as a member of the Thoppanahally Mandal Panchayat. The first respondent enquired into the matter and following a decision of this Court in S.R. RANGAPPA v. GIRIJAKUMAR AND ORS., 1987(2) BLJ 330. held that the post of Accountant in BEML is an-Office of profit for the purposes of Section 11(1)(j) of the Act and therefore the petitioner could not continue as a member of the said Mandal Panchayat-Aggrieved by that order the petitioner has preferred this petition under Article 226 of the Constitution of India.
3. Two contentions are urged before me by the learned Counsel for the petitioner. Firstly that under Section 12(2) of the Act the Deputy Commissioner could declare a person as having incurred the disqualification referred to under Section 12(1) of the Act either suo motu or on a report made to him and inasmuch as in the present case no report had been made to the Deputy Commissioner by any authority of the said Panchayat nor had he acted suo motu, the Deputy Commissioner was wrong in exercising power under Section 12(2) of the Act and making a declaration that the petitioner had incurred the disqualification under Section 12(1) of the Act. It was secondly contended that the petitioner does not hold an office of profit as contemplated under Section 11(1)(j) of the Act.
4. I am not impressed by either of the two arguments advanced on behalf of the petitioner. A bare perusal of the provisions of Section 12(2) of the Act makes it clear that it does not permit any limitations as suggested on behalf of the petitioner. What the said section requires is that when a question arises as to whether a member has incurred any disqualification under Section 12(1) of the Act the same will have to be decided under Section 12(2) of the Act. By whom such a question was raised, in what circumstances it was raised are not at all relevant for the purpose of application of the said section. All that is relevant is that a question of the type mentioned in the Section should arise and so the limitations suggested by Mr. Jois on the construction of Section 12(2) of the Act is plainly inconsistent with the words used in the said section. Further, the provisions of that section also do not lead to the assumption that ‘any authority has to receive a complaint and after prima facie investigation about the complaint send it or refer to the Deputy Commissioner for his decision. Words in the section merely emphasize that the question of the type contemplate by Section 12(1) of the Act shall be decided by the Deputy Commissioner and Deputy Commissioner alone no other authority can decide it nor such questions fall within the jurisdiction of any other Court. This is the significance of the words ‘shall be referred to the decision of the Deputy Commissioner’. Had it been the intention of the legislature that such a question must be raised by any other authority and after a prima facie examination it must be referred to the Deputy Commissioner the wording of the section would have been entirely different. I do not think there is any justification for reading such a serious limitation to Section 12 (1) & (2) merely by implication. It is also clear that when a power is invested in an authority exercisable suo motu that power can be exercised on the basis of information placed before it by any person in any manner. All that the authority concerned has to do is to exercise powers within the parameters of the law, that is, whether or not the disqualification stated in Section 12(1) of the Act is attracted. If the disqualification is attracted at whose instance the question is examined becomes wholly irrelevant. Therefore, in my view, there is absolutely no substance in the first contention raised on behalf of the petitioner.
5. The learned Counsel for the petitioner brought to my notice the decision of the Supreme Court In ELECTION COMMISSION v. SAKA VENKATA SUBBA RAO, and contended that Section 12 of the Act does not cover a pre-existing disqualification but only a supervening disqualification and the integral scheme of the provisions of Sections 11, 12, 14 and 18 of the Act would clearly indicate that such questions could be determined only on an Election Petition by an Election Tribunal. The learned Counsel with particular emphasis brought to my notice that the Supreme Court in that case not only referred to a seat becoming vacant but also referred to the conflict of jurisdiction that may arise between the two authorities if any other interpretation is given: one by the authority constituted under Section 12 of the Act and the other by the authority constituted under Section 14 of the Act. In line with the above the learned Counsel submitted that the proper interpretation that could be put to Section 12 of the Act is to confine the disqualification to such cases where there is supervening disqualification.
The learned Counsel also relied upon another decision of this Court in GOVINDAPPA v. SOMASEKHAR ISHWARAPPA AND ORS., 1979(1) KLJ 124. and contended that whore the alleged disqualification is one incurred prior to the election it can be decided only in a proceeding in an Election Petition and not under a provision akin to the provisions of Section 12 of the Act. The learned Counsel for respondents rebutted those contentions and urged that order of Deputy Commissioner to be upheld.
6. In order to appreciate the rival contentions raised by the learned Counsel, it is necessary to set-out the relevant provisions of Sections 12(1)(i) and (2), 14 and 18 of the Act:
“12. Disqualification for members – (1) If a member of a Mandal Panchayat –
(1) is or becomes subject to any of the disqualifications mentioned in Section 11; or
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his seat shall be deemed to be or to have become; as the case may be, vacant.
(2) If any question arises as to whether a person is, or has become subject to disqualification under Sub-section (1), the Deputy Commissioner may either suo motu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question.
14. Election Petition – (1) No election to fill a seat or seats in a Mandal Panchayat shall be called in question except by an Election Petition presented on one or more of the grounds specified in Sub-section (1) of Section 18 and Section 19 to the Munsiff within whose territorial jurisdiction the mandal concerned or the major portion of the mandal concerned is situate by any candidate at such election or by any voter qualified to vote at such election together with a deposit of one hundred rupees as security for costs, within thirty days from, but not earlier than, the date of declaration of the result of the election of the returned candidate, or if there are more than one returned candidate at the election, and if the dates of declaration of the results of their election are different, the last of those dates.
18. Grounds for declaring election to be void (1) Subject to the provisions of sub-section (2) if the Munsiff is of opinion –
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen as a member under this Act;
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(iv) ................the Munsiff shall declare the election of the returned candidate to be void.
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7. Section 11 of the Act provides for disqualification for being chosen as a member. Section 12(1)(j) provides that if a member of a Panchayat is subject to any disqualification mentioned in Section 11 on becomes so his seat shall be deemed to be or to have become vacant. While Section 11 thus provides for a pre-election disqualification, Section 12(1)(i) provides for a disqualification which subsists on the date when a person becomes a member by use of the verb ‘is’ or ‘becomes’ covering both the existing and future contingencies. Thus, the remedy of an Election Petition under Section 14 of the Act is available to challenge the disqualification covered by Section 11, while the disqualification dealt with in Section 12(1)(i) results in vacation of seat by operation of law and decision in regard to such disqualification will be made by the Deputy Commissioner. The argument that pre-existing disqualification which continues even after election cannot be examined under Section 12(2) of the Act but must be decided only by an Election Petition has thus no basis and must be rejected. The legislature itself notices the disqualifications which are pre-election and post-election and draws a distinction by referring to them in separate provisions of law, the former in Section 11 and the latter in Section 12. A disqualification incurred even before election but persisting or existing on the date of the election is directly covered by Section 12(1)(i) of the Act which clearly refers to a member being subject to disqualification ‘in praesents’ in contradistinction with becoming subject to disqualification in future. Under the Mysore Town Municipalities Act Sections 14 and 20 provided for disqualification and the effect thereof. Where a person is elected as a member in contravention of Section 14 under that Act the seat held by such a Councillor became vacant as is provided under Section 12(1)(i) of the Act that such seat shall be deemed to be or to have become vacant. The scheme and effect of the provisions of Section 11 and 12 under the Act was combined in Section 14 of that Act. Interpreting those provisions Supreme Court held in R. SUBANNA v. G.S. KAGGEERAPPA, :
“….Where a person is elected as a Councillor or contravention of the provisions relating to disqualification as contained in that Section, the seat of the returned candidate shall be deemed to be vacant. The language suggests that in such cases the election automatically becomes void without requiring it to be set aside by an Election Petition under Section 20 of the Act. At any rate, if the seat becomes vacant and if under Sub-section (3) the Government is made the final authority to determine such disputes, it would be unreasonable to hold that the same matter could be also agitated before the Election Commissioner under Section 20 of the Act, with the attendant risk of a conflict of decision between the two authorities.”
8. It is now necessary to closely examine the facts of the case in Saka Venkata Subba Rao’s case. In that case, the respondent viz., Saka Venkata Subba Rao was convicted for a period of 7 years’ rigorous imprisonment in the year 1942 and was released from prison on attaining Independence on 15th August 1947. In June 1952 when there was a bye-election to the Madras Legislative Assembly he filed his nomination from Kakinada constituency and was elected also. In the meanwhile, even before filing his nomination, he made an application to the Election Commission on 2-4-1952 for exemption so as to enable him to contest the election. No reply was received by him in that regard. However, the election having taken place the respondent was declared to have been elected by a vast majority. On 3-7-1952, the Speaker of the Assembly sent a communication to the Governor to take such action as he may think fit in the case of the respondent and his disqualification having thus been raised he challenged the competency of the reference and the action taken thereof by the Governor. When the Election Commission notified that the respondent’s case would be heard on 21-8-1952, on the same day he filed a Writ Petition in the High Court of Judicature at Madras. The High Court upheld the contention raised on behalf of the respondent that Articles 190(3) and 192(1) of the Constitution are applicable only where a member became subject to a disqualification and as such neither the Governor nor the Election Commission has jurisdiction to enquire into a disqualification which arose long before his election.
Indeed, the argument advanced before the Supreme Court was that Articles 191 and 193 of the Constitution cover both pre-existing and supervening disqualifications. In the light of the language employed in those Articles the Supreme Court decided the appeal on three facets of the matter: (i) that the language used in Articles 190(3) and 192(1) of the Constitution is that the expression “become subject to disqualification as a member” would only refer to a supervening arid not to a pro-existing disqualification. (ii) The effect of provisions of Article 190(3) and 192(1) not used the expression of “is” as is used in the relevant provision under constitution was also taken note of. (iii) The question of conflict of jurisdiction between the Election Tribunal and an authority constituted under Article 191 of the Constitution was also considered by the Supreme Court in the aforesaid decision. In Saka Venkata Subba Rao’s case the pre-existing disqualification did not continue at the time when the Election Commission initiated action against the respondent therein because by that time the five-year-period referred to under the provisions of the Constitution had elapsed and the respondent was not disqualified on that date. Therefore, there was no supervening disqualification so far as the respondent in that case was concerned. That is not the position in the present case at all. Here, the petitioner did have the disqualification on the date when his nomination was filed and which also continued even after his election and sitting as a member of the Mandal Panchayat. So far as the decision in Govindappa’s case is concerned the language of 71(1) and 29C(7) of the Karnataka Co-operative Societies Act is entirely different and the scope need not be considered in the present context as that decision has no application to the facts of the present case.
9. Thus, the facts and principles upon which Saka Venkata Subba Rao’s case proceeded and the cases decided on that line of authority are entirely different and distinguishable. On the facts and circumstances or principles applicable to the case on hand the provisions of law take care of not only disqualification occurring at pre-election stage, during election, or subsisting at the time of becoming a member or even at a future date. The scheme of provisions under the Act are not in pari materia with the provisions available under the Constitution in Articles 190(3) and 192(1). In Article 190(3) the words used are “become subject” and in 192(1) “has become subject” and these words indicate a change in the position of a member after he was elected. Thus, it was held while interpreting those provisions that the seat which a member was filling becomes vacant on his becoming disqualified. In Section 12(1)(i) of the Act this aspect of the matter is taken care of by the latter part of the clause using the words “becomes subject to” while the existing or subsisting disqualification is taken care of by use of the words “is subject to” as analysed earlier and hence the contention based on Saka Venkata Subba Rao’s case has got to be rejected.
10. It is next contended by the learned Counsel for the petitioner that he had not incurred the disqualification as contemplated under Section 11(1)(j) of the Act so as to attract Section 12(1) inasmuch as he does not hold an office of profit. In view of the decision of the Supreme Court in BIHARILAL DOBRAY v. ROSHAN LAL DOBRAY, it is unnecessary to reiterate the legal position in that regard. It has been clearly stated by the Supreme Court that two elements are necessary in order to attract such provisions, namely, (1) that there should be an office and (2) it should carry remuneration. In the present case, the petitioner does hold an office as an Accountant and he does receive remuneration. Therefore, the two conditions referred to by the Supreme Court are satisfied. Therefore, it clearly falls within the test laid down by the Supreme Court. That decision reviews all other decisions rendered till that date and therefore it is unnecessary to refer to any other decision that was cited before me.
11. However, the learned Counsel for the petitioner contended that BEML could not be considered as an authority for the purpose of Section 11(1)(j) of the Act. That argument also does not have much merit. I need not independently discuss that aspect of the matter because this Court in S.R. Rangappa v. Girijakumar and Ors. has elaborately considered the same. Further, the Supreme Court in Biharilal’s case, referred to earlier, considered whether a Board constituted under the Uttara Pradesh Basic Education Act was ‘State’ for the purposes of that Act. It was held therein a Board would be ‘State’ for purposes of Article 191 of the Constitution and explained in what circumstances an authority becomes ‘State’ for such purposes. Following the said two decisions and for the reasons stated therein, I hold that the petitioner holds an office of profit under an authority which is subject to control of the Union Government.
12. However, Shri Jois relied upon a decision of this Court in E.P.27/1985. In that case what fell for consideration was the scope of Article 191 of the Constitution, the language of which is entirely different from the language of Section 11(1)(j) of the Act. Under Section 11(1)(j) an office of profit held under an authority is also covered while it is not so under Article 191 of the Constitution. That makes all the difference. Hence, the decision referred to by the learned Counsel in that regard does not come to his aid.
13. Thus this petition is to be dismissed with costs. At this stage the learned Counsel relies upon the decision of the Supreme Court in MOHINDER SINGH v. ELECTION COMMISSIONER, that costs should not be levied on him. In that case the controversy was entirely different. Here, the petitioner is agitating a personal right to continue as a member of the Mandal Panchayat on being elected to that office. That is not the position in that case at all. Before the Supreme Court in the aforesaid case the question that fell for consideration was in relation to non-compliance with the provisions of law with regard to conduct of elections in general and hence costs were not levied. The observations in that regard have no bearing at all to the present case.
14. In that view of the matter, I find that the order made by the Deputy Commissioner is perfectly just and there is no substance in this petition. Petitioner having failed on all the contentions, this petition is liable to be and is dismissed with costs. Advocate’s fee Rs. 1,000/-.