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(1990) 1 KarLJ 116 : ILR 1989 KAR 3492

IN THE HIGH COURT OF KARNATAKA (BANGALORE)

Division Bench
Hon'ble Justice Rama Jois and Hon'ble Justice Ramakrishna, JJ.
Channabasappa Basappa Siddannavar - Appellant
Vs.
Chikkappa Tirukappa Motebennur - Respondent
Writ Appeal No. 1698 of 1989, Decided on : 20-10-1989
Karnataka Land Revenue Act, 1964 Section 14(3) Criminal Procedure Code,
1973 (CrPC) Section 133 Whether a Tahsildar who by virtue of Sub-section (3) of
Section 14 of the Karnataka Land Revenue Act, 1964, (hereinafter referred to as the
KLR Act), is deemed to be an Assistant Commissioner of the Revenue Sub-Division
concerned, has the power to convene a meeting of the Mandal Panchayat for moving a
vote of no confidence in the Pradhan, under Sub-section (3) of Section 47 of the
Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya
Panchayats Act, 1983.
Counsels for Appearing Parties
Mr. A.K. Subbaiah
Mr. F.V. Patil, N.K. Gupta, Government Advocate

ORDER
Rama Jois, Ag. C.J.In this appeal, the following question of law arises for consideration:"Whether a Tahsildar who by virtue of Sub-section (3) of Section 14 of the Karnataka Land
Revenue Act, 1964, (hereinafter referred to as the KLR Act), is deemed to be an Assistant
Commissioner of the Revenue Sub-Division concerned, has the power to convene a meeting of
the Mandal Panchayat for moving a vote of no confidence in the Pradhan, under Sub-section (3)
of Section 47 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats
and Nyaya Panchayats Act, 1983 (hereinafter referred to as the ZP Act)?"
2. Though this appeal is posted for orders, by consent of the learned Counsel appearing for
the parties it is taken up for final hearing.
3. The facts of the case, in brief, are these:Respondent-1 was the elected Pradhan of the Kakol Mandal Panchayat, Kakol, Ranebennur
Taluk, established under the ZP Act. The Members of the said Mandal Panchayat gave a notice of
'No Confidence Motion' against respondent-1. Section 47 of the ZP Act prescribes the procedure
for moving No-Confidence-Motion against Pradhan or Upapradhan of a Mandal Panchayat. The
Section after its amendment by Amending Act 5/1987, reads:"47. MOTION OF NO-CONFIDENCE AGAINST PRADHANA OR UPAPRADHANA OF MANDAL
PANCHAYAT:
(1) A motion expressing want of confidence in the Pradhana or Upapradhana may be made in

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accordance with the procedure laid down in the following sub-sections.

(2) A written notice of intention to make the motion, in such form as may be prescribed,
signed by not less than one half of the total number of Members of the Mandal Panchayat,
together with a copy of the proposed motion shall be delivered in person by any two of the
Members signing the notice to the Assistant Commissioner of the Revenue Sub-division
concerned (hereinafter in this Section referred to as the Assistant Commissioner).
(3) The Assistant Commissioner shall then convene a meeting for the consideration
motion at the office of the Mandal Panchayat on a date appointed by him which shall not be
than thirty days from the date on which the notice under Sub-section (2) was delivered to
He shall give to the Members a notice of not less than fifteen clear days of such meeting in
manner as may be prescribed:

of a
later
him.
such

Provided that where the holding of such meeting is stayed by an order of a Court, it shall be
adjourned, and the said Officer shall hold the adjourned meeting on a date not later than thirty
days from the date on which he receives the intimation about the vacation of stay after giving to
the Members notice of not less than fifteen clear days of such adjourned meeting.
(4) The Assistant Commissioner shall preside at such meeting. The quorum for such meeting
shall be two-thirds of the total number of Members of the Mandal Panchayat.
Explanation:- In the determination of two thirds of total number of Members under this
Section, any fraction arrived at shall be construed as one.
(5) Save as otherwise provided in this Act a meeting convened for the purpose of considering
a motion under this Section shall not for any reason be adjourned.
(6) If within one hour after the time appointed for the meeting there is no quorum, the
meeting shall stand dissolved and the notice given under Sub-section (2) shall lapse.
(7) As soon as the meeting convened under this Section commences, the Assistant
Commissioner shall read to the Members of the Mandal Panchayat, the motion for the
consideration of which the meeting has been convened and shall put it to vote without any
debate.
(8) The Assistant Commissioner shall not speak on the merits of the motion and he shall not
be entitled to vote thereon.
(9) If the motion is carried with the support of not less than two-thirds of the total number of
Members of the Mandal Panchayat, the Pradhana or Upapradhana, as the case may be, shall
forthwith cease to function as such and the Assistant Commissioner shall, as soon as may be,
notify such cessation in the prescribed manner and arrange in the manner prescribed for the
handing over of any documents, moneys or other properties of the Mandal Panchayat by the
person removed:
Provided that no election to the office of Pradhana or Upapradhana shall be held until after
such notification removing the Pradhana or Upapradhana, as the case may be, is published."
Prior to the Amending Act (Karnataka Act No. 5/87), Section 47 of the ZP Act empowered the
Deputy Commissioner to convene the meeting under Sub-section (3) of that Section, and by the
said Amending Act the words "Assistant Commissioner of the Revenue Sub-Division concerned"
were substituted for the words "Deputy Commissioner". After the Amendment, there is no
dispute that the Assistant Commissioner of the Revenue Sub-Division concerned is empowered
to convene the meeting under Sub-section (3) of Section 47 of the ZP Act.
4. In the present case, after the notice of no confidence motion was received, a meeting was
convened on 4-8-1989 at 11 AM, by issuing a Notice of Meeting dated 15-7-1989 (Annexure-B),
and in that meeting a resolution was passed by requisite number of votes approving the motion
of no confidence against the Pradhan (Respondent-1). Even before the meeting was held,

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Respondent-1 filed Writ Petition No. 13528/89 and secured an interim order staying further
action pursuant to the resolution if it were to be passed in the meeting held pursuant to
Annexure-B. The main contention of Respondent-1 in the Writ Petition was that the Assistant
Commissioner who issued the Notice of Meeting as per Annexure-B was no Assistant
Commissioner at all and was only an Incharge Assistant Commissioner and therefore in view of
several decisions of this Court holding that an Officer placed in charge or independent charge of
a post under Rule 32 of the Karnataka Civil Services Rules (hereinafter referred to as KCS Rules)
was not entitled to exercise statutory functions, the so called Assistant Commissioner had no
power to convene the meeting. This contention was resisted by the respondents in the Writ
Petition by contending that a Tahsildar exercising powers of Assistant Commissioner by virtue of
the provisions of Sub-section (3) of Section 14 of the KLR Act cannot be equated with a person
placed in charge or independent charge of a post under Rule 32 of the KCS Rules. This
contention was rejected by the learned Single Judge holding that in view of the decisions on
which the petitioner (Respondent-1) relied a Tahsildar could not exercise the statutory functions
vested in an Assistant Commissioner. Accordingly the Writ Petition was allowed and the
resolution approving the no confidence motion against Respondent-1 was set aside leaving
liberty to the Members of the Mandal Panchayat to move a fresh no-confidence-motion.
Aggrieved by the said order of the learned Single Judge, this appeal is presented.
5. The contention of the learned Counsel for the appellants and the learned Government
Advocate is that there is no comparison at all between a person placed in charge or independent
charge of a post under Rule 32 of the KCS Rules and a Tahsildar stationed at the headquarters of
the Assistant Commissioner of a Revenue Sub-Division exercising the powers of such Assistant
Commissioner by virtue of Sub-section (3) of Section 14 of the KLR Act. In fact they do not
dispute that if the Tahsildar was placed only incharge or independent charge of the post of the
Assistant Commissioner under Rule 32 of KCS Rules, he could not exercise the statutory
functions of the Assistant Commissioner and if that was the position, the view taken by the
learned Single Judge would have been unexceptionable. But their contention is that in view of
the clear wordings of Sub-section (3) of Section 14 of the KLR Act, in the absence of an
incumbent holding the office of the Assistant Commissioner, the Tahsildar stationed at the
headquarters of the Assistant Commissioner of a Revenue Sub-Division is invested with all the
powers of the Assistant Commissioner and therefore such a Tahsildar could exercise all statutory
functions which could be exercised by the Assistant Commissioner. Their further contention is
that in view of the fact that Section 47 of the ZP Act conferred power of convening the meeting
for consideration of no confidence motion on the Assistant Commissioner of the Revenue SubDivision, whoever happens to be the Assistant Commissioner of the Revenue Sub-Division under
the provisions of the KLR Act becomes automatically the Competent Authority for exercising the
statutory functions under Section 47 of the ZP Act.
6. In order to appreciate the contentions, it is necessary to consider and compare the
wording of Rule 32 of the KCS Rules and of Sub-section (3) of Section 14 of the KLR Act.
Rule 32 of the KCS Rules reads:"32. Instead of appointing a Government servant to officiate, it is also permissible to appoint
him to be in charge of the current duties of a vacant post. In such a case a "charge
allowance" (additional pay) is payable as specified in Rule 68.
Note 1: A Government servant can be appointed under this Rule to be in-charge of the
current duties of a vacant post only if he is eligible to be promoted to officiate in that post
according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in
an equivalent or higher grade.
Note 2: The provisions of this Rule apply also to cases where a Government servant being
relieved of his own appointment is appointed to be in independent charge of a higher
appointment as a temporary measure."

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Section 14(3) of the KLR Act reads:"(3) If the Assistant Commissioner of a Revenue Sub-Division is disabled from performing his
duties or is on leave or for any reason vacates his office or dies, the Tahsildar stationed at the
headquarters of the Assistant Commissioner shall, unless other provision is made by the
Government, succeed temporarily to his office and shall be deemed to be the Assistant
Commissioner of the Revenue Sub-Division under this Act, until the Assistant Commissioner
resumes charge of his Revenue Sub-Division, or until the Government appoints a successor to
the former Assistant Commissioner and such successor takes charge of the appointment."
Rule 32 of the KCS Rules provides for placing a civil servant in charge or in independent
charge of current duties of a higher post. It does not provide that the person so placed is
empowered to discharge all the powers vested in such higher post. But, the language of Subsection (3) of Section 14 of the KLR Act is entirely different. Whereas the KLR Act provides for
appointment of an Assistant Commissioner for a Revenue Sub-Division, Sub-section (3) of
Section 14 is intended to make a provision for the exercise of all the powers of the Assistant
Commissioner by the Tahsildar stationed at the headquarters of the Assistant Commissioner
during the period when the regular Assistant Commissioner is absent. According to this provision
such Tahsildar succeeds temporarily to the office of the Assistant Commissioner and he shall be
deemed to be the Assistant Commissioner. It is, therefore, clear that there is no power which the
Assistant Commissioner of a Revenue Sub-Division could exercise, which cannot be exercised by
the Tahsildar who succeeds to the office and is deemed to be the Assistant Commissioner during
the absence of the Assistant Commissioner. This legal fiction is created with a specific object
viz., that there must always be a person to exercise the powers of the Assistant Commissioner to
which office innumerable statutory powers and duties are attached under various enactments, so
that no difficulty is caused in the administration of those laws during the absence of the
Assistant Commissioner.
7. Now coming to the decisions on which reliance was placed by the learned Counsel, the first
decision is M. Maridev Vs. State of Mysore, 1968 (1) Mys.L.J. 325 . In that case Maridev was
aggrieved by the posting of his junior to the higher cadre under Rule 32 of the KCS Rules. His
contention, was that it was promotion of his junior and therefore violative of Articles 14 and 16
(1) of the Constitution. This Court held that such posting did not amount to any promotion and
that Rule 32 was intended to make a stop gap arrangement against a higher post by posting an
Officer in the lower cadre available on the spot. In the course of the Judgment this Court also
pointed out that Rule 32 of the KCS Rules only provided for placing a person in charge of the
current duties of a higher post and he was authorised to exercise only certain routine functions
and he could not exercise any of the statutory functions of the office. The ratio of the said
decision was applied in E.E. Gupta Vs. State of Mysore, 1962 Mys.L.J Supp 555 . That was a case
in which, in the absence of the Municipal Commissioner of the Mysore City Municipality, who
alone had the competence to issue calendar of events to conduct elections to the Municipal
Council, the Health Officer of the Municipality who was placed in charge of the post of Municipal
Commissioner by an order made by the State Government, had issued the calendar of events.
This Court held that Section 242(3) of the Mysore City Municipalities Act empowered only the
Municipal Commissioner to issue the calendar of events and conduct elections to the Municipal
Council and as the Health Officer was not appointed as the Municipal Commissioner during the
absence of the Municipal Commissioner but was only placed in charge of the post of the
Municipal Commissioner, the steps taken by him to hold the elections were without the authority
of law. The ratio of both the aforesaid decisions is not apposite to this case because this is not a
case in which the Tahsildar is placed incharge of the post of the Assistant Commissioner under
Rule 32 of the K.C.S. Rules,
Another decision relied upon was Patel Channe-Gowda Vs. Krishna Gowda, 1971 (1) Mys.L.J.
407 . In that case the question for consideration was whether the Tahsildar working as Assistant
Commissioner by virtue of the provisions of Section 14(3) of the KLR Act could exercise all the

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powers of a full-fledged Assistant Commissioner including the powers of a Sub-Divisional

Magistrate. The learned Judge, in that case held that a Tahsildar who is deemed to be an
Assistant Commissioner, not being a full-fledged Assistant Commissioner, could not exercise the
powers of the Assistant Commissioner. The relevant portion of the Judgment reads:
"Sri C.B. Motaiah, the learned Advocate appearing on behalf of the respondents urged that in
the said decision the provisions of Section 14(3) of the Mysore Land Revenue Act have not been
taken into consideration and a plain reading of Sub-section (3) would show that during the
temporary absence of the regularly appointed Assistant Commissioner, a Tahsildar stationed at
the headquarters succeeds temporarily to the office of the Assistant Commissioner and is to be
deemed an Assistant Commissioner of the Revenue Sub-Division under the Act, and that would
go to show that the Officer who issued the preliminary order in the case on hand was, may be
for a short duration, a full fledged Assistant Commissioner and as such was also a full-fledged
Sub-Divisional Magistrate, and therefore the preliminary order issued by him would be an order
with jurisdiction. In my opinion this contention does not carry any force. Sub-section (3) of
Section 14 of the Mysore Land Avenue Act reads as follows:
A reading of the above provision makes it abundantly clear that an arrangement is made in
order to keep the office running during the temporary absence of a regularly appointed Assistant
Commissioner. Care is taken while wording the above provision. It is not stated therein that such
a Tahsildar shall be the Assistant Commissioner of the said Revenue Sub-Division. The words
used are carefully chosen and they are as follows:
"shall be deemed to be the Assistant Commissioner of the Revenue Sub-Division."
In my opinion, there is substantial difference between an Assistant Commissioner regularly
appointed and a person who is deemed to be an Assistant Commissioner. How I understand the
meaning of the words 'deemed to be as' is 'taken to be though not appointed as such'. In view of
this distinction I am unable to agree with the contention put forward by the learned Advocate. In
the result, it will have to be held that the Tahsildar who was an in-charge Assistant
Commissioner of the Chikkamagalur Sub-Division, was not at all empowered to institute
proceedings under Section 133 Cr.P.C., and therefore, the preliminary order passed on 13-101979 is not valid in law."
With agree respect to the learned Judge, we are unable to agree with the view taken by him.
When the Legislature has enacted and has provided that during the absence of an Assistant
Commissioner the Tahsildar stationed at the headquarters of the Assistant Commissioner shall
be deemed to be the Assistant Commissioner and he succeeds temporarily to that post, it clearly
means that for all purposes he must be regarded as the Assistant Commissioner. The very
purpose of creating a legal fiction is that even though the Tahsildar stationed at the
headquarters of the Assistant Commissioner is not the Assistant Commissioner, he must be
deemed to be the Assistant Commissioner in relation to the exercise of all the powers of the
Assistant Commissioner of the Revenue Sub-Division concerned. The view taken by the learned
Judge in Patel Channegowda's case, in our opinion, would defeat the very purpose of creating a
legal fiction under Section 14(3) of the KLR Act. In our opinion, in view of the clear wording of
Sub-section (3) of Section 14 of the KLR Act, the Tahsildar stationed at the headquarters of the
Assistant Commissioner, during the absence of the Assistant Commissioner, is empowered to
exercise all the powers of the Assistant Commissioner, and therefore, was competent to convene
the meeting under Section 47(3) of the ZP Act.
8. For the aforesaid reason we answer the question set out as follows:
The Tahsildar who by virtue of Sub-section (3) of Section 14 of the KLR Act is deemed to be
an Assistant Commissioner of the Revenue Sub-Division concerned, has the power to convene a
meeting under Sub-section (3) of Section 47 of the ZP Act.
9. After having failed to Convince us about his construction of Section 14(3) of the KLR Act,
Sri F.V. Patil, learned Counsel for the first respondent, submitted that all the persons who were

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respondents in the Writ Petition have not been impleaded as parties in this appeal and
therefore the appeal is defective. In reply, the learned Counsel for the appellant pointed out that
the Writ Petition was presented by the first respondent impleading only the Mandal Panchayat
and the Assistant Commissioner as the respondents.
It is seen from the records that respondents 3 to 24 in the Writ Petition, had filed a common
application (I.A.I. in the W.P) for impleading them as respondents. That application was allowed
and they were permitted to be impleaded as respondents 3 to 24 to oppose the Writ Petition,
and the appellants are two out of them. Therefore, the contention that as all the respondents in
the Writ Petition are not impleaded in the appeal, the appeal is defective, is untenable. Apart
from that, the Mandal Panchayat is impleaded as a respondent in the Writ Petition as well as in
this appeal, which means that all the Members of the Panchayat are represented through the
Panchayat. Hence the contention of Mr. F.V. Patil is devoid of merit and is rejected.
10. In the result, the appeal is allowed, and in reversal of the order of the learned Single
Judge, we dismiss Writ Petition No. 13528/89.

ORDER ON ORAL PRAYER

11. After the pronouncement of the order, the learned Counsel for Respondent-1 made an
oral prayer under Article 134A of the Constitution requesting for grant of certificate of fitness to
appeal to the Supreme Court under Article 133 of the Constitution.
12. In our opinion, no substantial question of law requires to be decided by the Supreme
Court arises for consideration in this case. Hence, the oral application is rejected.

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