SHAMBALINGAIAH RACHAPPA Vs. RETURNING OFFICER

JUDGEMENT

(1.) In this petition in which the petitioner has sought for the issue of quo warranto two questions arise for decision. They are:

(2.) These questions arise in the following circumstances. The term of the City Municipal council of Bijapur was to expire on 9-7-1979 and the election was to be held on 3-7-1979. The calendar of events was to be published on 29-5-1979. The Divisional Commissioner of Belgaum appointed the Assistant Commissioner of Bijapur revenue sub-division as the Returning Officer on 7-5-1979 under rule 4 of the Rules, The Assistant Commissioner of Bijapur Sub division prepared the calendar of events and intended to issue it on 21-5-1979. He went on casual leave on 12-5-1979 and continued to be on leave till 3-6-1979. On 12-5-1979 the Deputy Commissioner of Bijapur district placed respondent-2, who was the Head Quarters assistant to Deputy Commissioner, in temporary charge of the Bijapur Revenue Sub-division. On 27-5-979 he orally directed respondent who was in charge of the Revenue Sub division, Bijapur, to publish the calendar of events. In pursuance of the said direction respondent-2 published the calendar of events on 29-5-1979. Thereafter, the Deputy Commissioner of Bijapur Addressed a communication to the Divisional Commissioner on 27-5-1979. informing him that the incharge assistant commissioner was not competent to discharge the statutory functions under the Rules and therefore, he requested the Divisional Commissioner to request the State Government to appoint the incharge Assistant Commissioner of Bijapur Revenue Sub Division with effect from 14-5-1979. The Divisional Commissioner on receipt of this communication addressed a letter to the State Government for the appointment of respondent-2 as the Assistant Commissioner of Bijapur revenue sub division. On reciept of this communication the State Government passed the notification (Ex. N) dated 6-6-1979 appointing respondent-2 as the officiating Assistant Commissioner of Bijapur Revenue Sub Division retrospectively from 14-5-1979. The notification Ex. N, reads thus:

(3.) Mr. B. Thilak Hegde, learned advocate for the petitioner firstly contended that respondent-2 who was the in-charge Assistant Commissioner of the Bijapar Revenue Sub-Division placed in charge of the Bijapur Revenue Sub-Division by the Deputy Commissioner, Bijapur was not competent to exercise the statutory functions under the Act and the Rules. In support of this contention Mr. Hegde urged that respondent-2, who was placed in temporary charge of the Bijapur Revenue Sub Division was not competent to exercise the powers of a Returning Officer, as he was not appointed by the Government to officiate as the Assistant Commissioner of the said sub division on the date i.e., 29-5-1979 on which date the calendar of events were published. Secondly he contended that the appointment of respondent- 2 under Ex.N. retrospectively would not validate the action takan by respondent-2 in publishing the calendar of events and conducting the elections till the results were announced by him.