Shri. Suresh S/O. Annasaheb ... vs The State Of Karnataka
2021 Latest Caselaw 3177 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 28 T H DAY OF JULY, 2021

                        PRESENT

           THE HON'BLE MR.JUSTICE B.VEERAPPA
                            AND
          THE HON'BLE MR.JUSTICE M.G.S. KAMAL


       WRIT APPEAL No.100136 OF 2021 [CS, EL/M)

BETWEEN:

1.     Shri Suresh, S/o Annasaheb Udagave,
       Age: 53 years, Occ: Agriculture,
       R/o Sadalaga, Taluk: Chikodi,
       Dist: Belagavi-591 201.

2.     Shri Mahaboob Meerasab Kale,
       Age: 57 years, Occ: Maisen,
       R/o Sadalaga, Taluk: Chikodi,
       Dist: Belagavi-591 201.

3.     Smt.Noushadbi, W/o Abubakkar Mujavar,
       Age: 64 years, Occ: Household work,
       R/o Sadalaga, Taluk: Chikodi,
       Dist: Belagavi-591 201.

4.     Smt.Sujata, W/o Suresh Kumbar,
       Age: 31 years, Occ: Household work,
       R/o Sadalaga, Taluk: Chikodi,
       Dist: Belagavi-591 201.
                                             ... APPELLANTS
(By Sri Shivaraj P.Mudhol, Advocate)

AND:

1.     The State of Karnataka,
                            :2:


      Represented by its Secretary,
      Department of Urban Development,
      M.S.Building, Bengaluru-560 001.

 2.   The Deputy Commissioner,
      Belagavi, Dist: Belagavi, PIN 590 001.

 3.   The Town Municipal Council,
      Sadalaga, At: Sadalaga,
      Tq. Chikodi, Dist: Belagavi,
      PIN: 591 201.

 4.   Tahasildar, Chikkodi and
      Returning Officer,
      Adyaksha and Upa Adyaksha of
      Town Municipal Council, Sadalaga,
      At: Sadalaga, Taluk: Chikodi,
      Dist: Belagavi, PIN 591 201.

 5.   The President,
      Chikodi District Bharatiya
      Janata Party, Chikodi,
      Taluk: Chikodi,
      Dist: Belagavi, PIN 591 201.
                                           ... RESPONDENTS
 (By Smt. K.Vidyavati, learned Additional *Advocate
 General for R-1, 2 and 4;
 Sri Sanjay S. Chanal, Advocate for R-3;
 Sri Jayakumar S. Patil, Senior Counsel for Sri Srinand A.
 Pachchapure, Advocate for R-5)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
 THE HIGH COURT ACT, 1961, PRAYING TO SET-ASIDE THE
 ORDER DATED 21.06.2021 MADE IN WP NO.148736/2020
 (LB-RES) PASSED BY THE LEARNED SINGLE JUDGE OF
 THIS COURT.

      THIS   WRIT   APPEAL COMING ON  FOR
 PRELIMINARY HEARING THIS DAY, B.VEERAPPA
 J., DELIVERED THE FOLLOWING:

                     Sd/-
                    Judge
*Corrected vide chamber Order dated 19.08.2021
                                 :3:


                            JUDGMENT

The unsuccessful petitioners have filed this intracourt

Appeal against the Order dated 21.06.2021 made in

W.P.No.148736/2020 by the learned single Judge of this

Court.

2. The factual matrix of the case is that, the

appellants are the Councilors elected to the Town

Municipal Council, Sadalaga, Chikkodi Taluk,

Belagavi District, from their respective Wards on

03.09.2018 from Bharatiya Janata Party. The

Tahsildar had issued the calendar of events on

23.10.2020 for conducting election to the post of

President and Vice President fixing the meeting on

02.11.2020. The first appellant was elected as

President of 3rd respondent-Town Municipal

Council. Thereafter, the President of Bharatiya

Janata Party, Chikkodi Lok Sabha Constituency

lodged a complaint dated 03.11.2020 to the

Deputy Commissioner. On the same day, the

District President of Bharatiya Janata Party also

submitted a complaint to the Chief Officer Town

Municipal Council, Sadalaga. On the basis of the

said complaint, the Deputy Commissioner, initiated

proceedings under the provisions of the Karnataka

Local Authorities (Prohibition of Defection) Act,

1987, ('Act' for short) for disqualification of the

petitioners and issued notices to the parties to

appear before him to decide the disqualification.

On 10.12.2020, the Deputy Commissioner directed

the parties to appear before him on 17.12.2020.

The petitioners filed W.P.No.148736/2020 before

this Court seeking to quash the proceedings in

No.BGM.DUDC.CR.38.2020-21 dated 19.11.2020

and further proceedings on the file of the Deputy

Commissioner, as per Annexure-A.

3. The respondents filed objections to the writ

petition. After hearing both the parties, the

learned single Judge, by the impugned Order

dated 21.06.2021, dismissed the writ petition

holding that what is challenged is only initiation of

proceedings by the Deputy Commissioner and

found that there is no illegality in the Order

passed by the Deputy Commissioner. Hence, the

present Writ Appeal is filed by the appellants.

4. We have heard the learned counsel for the

parties to the lis.

5. Sri Shivaraj P.Mudhol, learned counsel for the

appellants contended with vehemence that the

impugned Order passed by the learned single

Judge dismissing the writ petition challenging the

proceedings initiated by the Deputy Commissioner

is erroneous, contrary to the material on record

and cannot be sustained. He further contended

that the very complaint filed by the 5 t h respondent

on 03.11.2020 to the 2nd respondent/Deputy

Commissioner seeking disqualification and taking

cognizance of the same is without jurisdiction,

contrary to the provisions of Sections 4(1)(b) and

4(2)(iii) of the Act. He further contended that the

learned single Judge ought not to have held that

the cognizance taken by the 2 n d respondent is

legal. As per the statute, there is no power

vested with the Project Director and he has no

statutory power to receive the letter from the

Chief Officer and the Chief Officer has no statutory

power to send the papers to the Project Officer

and therefore, taking cognizance and initiating

proceedings is bad in law. The said aspect has not

been appreciated by the learned single Judge.

6. It is further contended that the very

complaint lodged on 03.11.2020 to the wrong

authority within 15 days is not maintainable.

Under the provisions of Section 4(2)(iii) of the

Act, the Chief Executive Officer of the concerned

local authority shall, within 24 hours from the

receipt of complaint, refer the same for decision to

the Deputy Commissioner. The same has not been

done in the present case and the learned single

Judge has failed to consider the said aspect of the

matter. Therefore, he sought to allow the Writ

Appeal.

7. Per contra, Smt.K.Vidyavathi, learned

Additional Advocate General, appearing for

respondent Nos.1 and 2 while justifying the

impugned Order passed by the learned single

Judge, contended that the complaint is given to

the Chief Executive Officer under Section 4(1) of

the Act as per Annexure R-1 by President of BJP.

In compliance with the provisions of Section 4(2)

of the Act, the CEO has forwarded the complaint to

the Deputy Commissioner and based on that the

Deputy Commissioner issued notice to the

petitioners on 19.11.2020. The said notice is not

challenged. What is challenged is only the

proceedings initiated by the Deputy Commissioner

as per Annexure-A. The very writ petition was not

maintainable and the learned single Judge is

justified in dismissing the writ petition.

Therefore, he sought to dismiss the Appeal.

8. Sri Jayakumar S. Patil, learned Senior

Counsel representing respondent No.5, while

justifying the impugned Order contended that

though the complaint was made on 03.11.2020

within 15 days to the Chief Officer by the

President of Bharatiya Janatha Party-5 t h

respondent, should have referred it to the Deputy

Commissioner. The authority is the Deputy

Commissioner to take initiation for disqualification

and as such he has taken cognizance and initiated

the proceedings. It is always open for the

petitioners to file objections before the Deputy

Commissioner on the complaint lodged by the 5 t h

respondent and it is for the Deputy Commissioner

who is the original authority to decide the

allegations and petitions filed and proceed in

accordance with law. The very writ petition filed

questioning the proceedings was not maintainable

and therefore, sought to dismiss the Appeal.

9. Sri Sanjay S. Chanal, learned counsel for the

respondent No.3 while justifying the impugned

Order passed by the learned single Judge, adopted

the arguments of the learned Additional Advocate

General for the State.

10. In view of the aforesaid rival contentions

urged by the learned counsel for the parties, the

only point that would arise for our consideration in

the present intracourt appeal is:

"Whether the impugned order passed by the learned single Judge calls for interference in the facts and circumstances of the present case?"

11. We have given our thoughtful consideration

to the arguments advanced by the learned counsel

for the parties and perused the entire material on

record, carefully.

12. It is undisputed fact that the petitioners/

appellants are the elected councilors of TMC,

Sadalaga, Chikkodi Taluk, Belagavi District from

BJP in the elections held on 03.09.2018.

13. It is also not in dispute that the jurisdictional

Tahsildar issued the calendar of events on

23.10.2020 for conducting elections to the post of

President and Vice President fixing the meeting on

02.11.2020. The petitioner No.1-Suresh A.

Udagave was elected as the President to the 3 r d

respondent-TMC. It is also not in dispute that

the 5th respondent submitted a complaint on

03.11.2020 to the Chief Officer seeking initiation

of proceedings for disqualification of the

petitioners on the ground of violating whip

purportedly issued by the party President. Said

complaint has been addressed to the respondent

No.2-Deputy Commissioner as per Annexure-H.

Similar complaint of even date has been addressed

to the Chief Officer, TMC, Sadalaga, Chikkodi

Taluk, as per Annexure-R1. The Chief Officer, has

forwarded the said complaint to the Project

Director. The District Urban Development Cell,

Office of the Deputy Commissioner, Belagavi vide

his letter dated 05.11.2020, the respondent No.2,

Deputy Commissioner has issued notice dated

19.11.2020 calling upon the petitioner to show

cause as to why they should not be disqualified

from membership of TMC, Sadalaga in terms of

Section 3(1)(b) of the Act.

14. The Contention of the petitioners is that filing

of the complaint dated 03.11.2020 by the 5th

respondent addressed to the Chief Officer as well

as to the Deputy Commissioner and initiation of

the proceeding by the Deputy Commissioner

thereon is illegal as they are contrary to the

provisions of Section 4(1)(b) and 4(2)(iii) of the

Act. The said provisions are extracted hereunder:

4. Decision on the question as to disqualification on the ground of defectioin.- (1) A Complaint that a member or a Councillor has become subject to the disqualification under Section 3 may be made by a member, Councillor or a political party to the

Chief Executive Officer of the concerned local authorities. XXXXX

(b) in a cases falling under clause (b) of sub-section (1), after the expiry of fifteen days specified therein; XXXXX

(2) Where a complaint under sub- section (1) is received by the Chief Executive Officer of the concerned local authority, he shall, within twenty-four hours from the receipt of such complaint, refer the same for decision to.- XXXXX

(iii) In the case of a City or Town Municipal Council (or Town Panchayat), the to the Deputy Commissioner."

15. Thus, referring to the above provision,

learned counsel for the petitioner submitted that

the complaint is premature as the same has been

filed before the expiry of 15 days and has been

addressed to a wrong authority. Besides, there is

non-compliance of mandatory Section of the

4(1)(b) and 4(2)(iii) of the Act thereby vitiating

the entire proceedings. This according to the

petitioner has not been adverted to by the learned

Single Judge. We find considerable force in the

submission of the learned counsel for the

petitioners.

16. The learned Single Judge has proceeded to

hold that, "as per Section 4 of the Act, after the

Deputy Commissioner receives the complaint from

the Chief Officer in respect of the Town Municipal

Council, he has to decide the question of

disqualification within 60 days after receipt of the

reference by him and his decision is final. The

provision does not prescribe any procedure for

conducting the proceedings. Since in the case on

hand, what is challenged is only initiation of

proceedings by the Deputy Commissioner and the

initiation of proceedings by the Deputy

Commissioner under the Act was after following all

procedure of law, there is no illegality" and

accordingly, dismissed the writ petition.

17. The learned single Judge has not noticed that

the Act contemplates that after receipt of

complaint from the President of concerned party to

the CEO, the CEO shall refer to the Deputy

Commissioner as contemplated under Section

4(2)(iii). The learned single Judge erred in

holding that the provision does not prescribe any

procedure for conducting proceeding and further

held that there is no illegality in the order passed

by the Deputy Commissioner as per Annexure-A.

The observations of the learned Single Judge is

contradictory and has to be clarified.

18. As rightly submitted by the learned senior

counsel for the private respondents all these legal,

technical and procedural aspects can be urged

before the 2 n d respondent-Deputy Commissioner

who shall adjudicate the matter in accordance with

law. Learned counsel for the petitioners does not

dispute this aspect of the matter. In the

circumstances, we are of the considered view that

the 2nd respondent-Deputy Commissioner, who

initiated the proceedings under the Act being the

original authority needs to adjudicate and decide

these issues raised by the parties.

19. For the reasons stated above, the

appellants/petitioners have made out a case to

modify the impugned Order passed by the learned

single Judge, to that extent.

20. Whether the filing of the complaint was

within the stipulated time, whether the same have

been addressed and filed before the proper

authority and whether the initiation of the

proceedings are in accordance with the provisions

of the Act are the matters to be decided by the

original authority, i.e., the Deputy Commissioner

who initiated the proceedings for disqualification.

To that extent, the impugned order passed by the

learned single Judge has to be modified. The only

contradiction in the order of the learned single

Judge has to be set-aside. It is always open for

the appellants to file objections to the complaint

filed before the Deputy Commissioner by the 5 t h

respondent in the proceeding initiated. It is for

the Deputy Commissioner to consider all the

objections including the violation of the provisions

of Section 4(1) and 4(2) of the Act and to proceed

and pass orders strictly in accordance with law.

21. With the above observations, the Writ Appeal

is disposed off. It is made clear that we have

not expressed any opinion on merits and demerits

of the case. It is for the Deputy Commissioner to

decide the same in accordance with law, after

providing sufficient opportunity to both the parties

and pass appropriate orders within the time

stipulated under law. All the contentions of both

the parties are left open to be urged before the

Deputy Commissioner.

Sd/-

JUDGE

Sd/-

JUDGE

kcm