H VITTAL SHETTY Vs. ANNAYYA NAYAK

JUDGEMENT

(1.) The writ Petitioner contested the Udupi Taluk Board election held on 20-5-1978 from Kokkarne constituency and got himself elected, according to the results declared on 21-5-1978. One of the citizens challenged the election of the present writ petitioner by filing an election petition under S. 106 of the Karnataka Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as 'the Act') before the Principal Munsiff, Udupi and the Principal Munsiff, Udupi, agreeing with the election petitioner held that the present writ petitioner was disqualified to contest the election as he continued to be a village accountant as his resignation was not yet accepted and in that view he set aside the election by his order dated 28-8-1980, vide Annexure-D. Aggrieved by the said order the present writ petitioner took up the matter in appeal before the District Judge, South Kanara, in M.A. No. 23 of 1980 and the learned District Judge reassessing the evidence on record dismissed the appeal by his judgment dated 24-11-1980. Aggrieved by the same, the present Writ Petition has come to be filed.

(2.) The main ground taken in the present writ petition is that the court below has no jurisdiction to entertain the election petition as the disqualification was a continuing one existing on the date of election and existing even thereafter. The proper remedy according to him was to refer the matter to the Divisional Commissioner under S. 103 (3) of the Act, as the case fell within the scope of S. 103 (2).

(3.) The learned Advocate appearing for the writ petitioner invited my attention to S. 103 of of the Act which inter alia reads ;