Hasimpeer Rajakasab Aland And Ors vs The State Of Karnataka And Ors
2021 Latest Caselaw 5755 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 8TH DAY OF DECEMBER 2021

                         PRESENT

          THE HON'BLE MR.JUSTICE R. DEVDAS
                           AND
     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

             WRIT APPEAL NO.200167/2021 (LB)

BETWEEN:

1.     HASIMPEER RAJAKASAB ALAND
       AGE 38 YEARS,
       OCC: MUNICIPALITY MEMBER,
       R/O: TEKIA GALLI, TIPPU SULTAN CIRCLE
       SINDHAGI, TQ SINDHAGI
       DIST VIJAYAPUR-586128

2.     SHRISHAIL S/O MALLAPPA BEERGOND
       AGE 31 YEARS, OCC: MUNICIPALITY MEMBER,
       R/O: WARD NO. 3,
       PUJARI GALLI KANAKADAS CIRCLE,
       SINDAGI, TQ SINDHAGI,
       DIST: VIJAYAPUR 586128

3.     SMT. PRATIBHA W/O SHIVAKUMAR KALLUR
       AGE 29 YEARS, OCC: MUNICIPALITY MEMBER,
       R/O: VIDYANAGAR 4th CROSS, SINDHAGI
       TQ: SINDHAGI, DIST VIJAYAPUR-586128

4.     SMT. TAHASIN BANU W/O ABID MULLA
       AGE 40 YEARS,
       OCC MUNICIPALITY MEMBER,
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      R/O: TEKIA GALLI,
      TIPPU SULTAN CIRCLE, SINDHAGI
      TQ SINDHAGI, DIST VIJAYAPUR-586128
                                       ...APPELLANTS
(BY SRI.JAYAKUMAR S.PATIL, SR.COUNSEL FOR
  SRI.AMRESH S ROJA, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       DEPARTMENT OF MUNICIPAL ADMINISTRATON
       M.S BUILDING, BANGALORE-1,
       REPRESENTED BY ITS SECRETARY

2.     THE DEPUTY COMMISSIONER
       VIJAYAPUR-586101.

3.     THE TAHASILDAR
       SINDHAGI, DIST VIJAYAPUR-586128.

4.     THE CHIEF OFFICER
       CITY MUNICIPAL COUNCIL,
       SINDHAGI, DIST VIJAYAPUR-586128.

5.     H.R ALGUR
       AGE 60 YEARS,
       OCC: DISTRICT CONGRESS PRESIDENT,
       R/O: CONGRESS OFFICE COURT ROAD,
       VIJAYPUR-586101.

6.     SHARANAPPA S/O TIPPANNA SUNAGAR
       AGE 64 YEARS,
       OCC EX MLA SINDAGI
       R/O: TIPPU SULTAN CIRCLE SINDAGI
       TQ SINDHAGI, DIST VIJAYAPURA-586128.
                                        ....RESPONDENTS

(BY SRI.SHIVAKUMAR R.TENGLI, AGA FOR R1 TO R3
  SRI. SANGANABASAVA B.PATILS, ADV. FOR R4
  SRI. B.C.JAKA, ADV. FOR R5
   SRI. SHIVAKUMAR KALLOOR, ADV. FOR R6 )
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     THIS WRIT APPEAL IS FILED U/S. 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED
IN WRIT PETITION NO. 201461/2021 DATED 04/10/2021, BY
ALLOWING THE WRIT PETITION.


     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:

                       JUDGMENT

R. DEVDAS J., (ORAL):

This intra-Court writ appeal is filed by the writ

petitioners whose challenge raised to the order of

disqualification dated 22.07.2021 passed by the

competent authority, Deputy Commissioner, was

rejected by the learned Single Judge.

2. The appellants were elected as Councilors

to the City Municipal Council (for short 'CMC') Sindagi,

from the Indian National Congress (for short 'INC').

The election to the post of President and Vice-

President of CMC was held on 03.11.2020. It appears

that the appellants disobeyed the whip issued by the

party through the authorized person and cross voted

in favour of a candidate from Janata Dal (Secular).

Alleging the said disobedience, the respondent No.5-

District Congress President, lodged a complaint on

09.11.2020, with the Election Officer, to refer the

complaint to the Deputy Commissioner, for his

consideration and decision, under the provisions of the

Karnataka Local Authorities (Prohibition of Defection)

Act, 1987 (for short 'the Act'). The Deputy

Commissioner, having considered the material on

record, held that the appellants herein disobeyed the

whip issued by authorized person and consequently

passed an order disqualifying the appellants herein

from the membership of CMC.

3. Learned Senior Counsel Sri.Jayakumar

S.Patil, appearing for the appellants draws attention of

this Court to a decision of the Hon'ble Supreme Court

in the case of Sadashiv H.Patil Vs. Vithal D.Teke

and Others, (2000) 8 SCC 82, to contend that the

declaration of law has been reiterated by the Hon'ble

Supreme Court having regard to the consequences

that befall an elected member of the local body that it

is not only on the elected member but also on the

constituency represented by him, which would seize to

be represented on account of his having been

disqualified, and looking at the penal consequences

flowing from an elected Councilor being subjected to

disqualification and its repercussion on the functioning

of the local body as also the City or Township

governed by the local body, the provisions have to be

construed strictly. A rigorous compliance with the

provisions of the Act and Rules must be shown to

have taken place while dealing with a reference to the

provisions of the Act.

4. Saying so, the learned Senior Counsel

would further draw the attention of this Court to

paragraph No.18 of the impugned order in the writ

petition, where the learned Single Judge has held that

when a case of defection is brought-forth before the

competent authority, it the preponderance of

probabilities rather than strict proof that should be the

test to determine whether there was a case of

defection. This, according to the learned Senior

Counsel is contrary to the established principles of law

that while considering a case of defection under the

Anti Defection Laws, strict adherence to the provisions

of law is required to be ensured.

5. Learned Senior Counsel would further

elaborate, stating that the material placed on record

before the Deputy Commissioner was rightly

considered by the Deputy Commissioner and the

Deputy Commissioner observed that since there is no

clarity regarding the issuance of whip, he was

constrained to consider the statements made by the

members of the Councilor belonging to INC and the

information/articles carried out in the newspapers.

The learned Senior Counsel would draw the attention

of this Court to some of the important aspects such as

declaration made by the Tahsildar fixing the date of

election by order dated 23.10.2020; resolution passed

by the members of INC, including two independent

candidates who supported the candidates put up by

the INC, on 25.10.2020; the President of KPCC (I)

authorizing Sri.H.R.Algur, the District Congress

President, to issue whip, on 29.10.2020; there being

no date on the whip, which would otherwise mention

the date of election as 02.11.2020, while the election

was to be held on 03.11.2020; the photographs

produced by the complainant before the Deputy

Commissioner stating that Sri.Vasant Honmode, the

General Secretary of the District Congress Committee,

serving the whip on the Councilors belonging to INC.

There again the whip is said to have been served on

the appellants on 02.03.2020. The learned Senior

Counsel would therefore submit that even the Deputy

Commissioner had rightly considered the material on

record to come to a conclusion that the complainant

was not able to prove beyond reasonable doubt that

the whip was served on the appellants, in a manner

known to law. That being the position, the learned

Senior Counsel would contend that both the orders

passed by the Deputy Commissioner as well as the

learned Single Judge is required to be set aside.

6. Per contra, learned counsel Sri Shivakumar

Kalloor, who had initially filed caveat on behalf of

respondent Nos.5 and 6, would submit that although

there are certain mistakes, as noticed by the learned

Single Judge, nevertheless, the appellants have not

denied the fact that their signatures were found on

the whip and that have received the whip as found in

the photographs. Further, they have also not denied

the fact that they were aware that party had decided

to field two of its members belonging to the party and

who were elected from the party to the post of

President and Vice-President of the council. That

being the case, merely because there are some

mistakes that were found on the record, that shall not

enure to the benefit of the appellants to have openly

cast their votes in favour of two candidates belonging

to another party. The learned Senior Counsel would

submit that the very purpose for which Anti Defection

Laws were enacted even in respect of the local bodies

is to ensure that there is discipline maintained in the

party and the members, by their conduct should not

go against the directions issued by the political party.

The learned counsel strenuously argued that, on a

plain reading, it is evident that the date shown on the

photographs as 02.03.2020 is a mistake, since the

President of KPCC (I) had authorized the District

Congress President to issue whip, only on 29.10.2020

and on 02.11.2020 in the presence of Ex-MLA of the

political party of INC, the General Secretary of the

District Congress Committee had served the whip, in

terms of the authorization delegated by the District

Congress President in favour of respondent No.6

herein, who was Ex-MLA belonging to INC. It is

further added that the District Congress President

Sri.H.R.Algur, respondent No.5, was hospitalized and

therefore he further delegated the powers of serving

the whips on the members of the council belonging to

INC. The learned counsel would also submit that

along with photographs, a video-graph was also

furnished before the Deputy Commissioner in the form

of compact disc and a pen drive. These materials,

would fairly establish the fact that the appellants

herein were served with the whip on 02.11.2020 and

they have affixed their signatures on the whip, which

is not denied by them. All these aspects, including the

publication of information in the newspapers that the

INC had fielded Smt.Natikar Khairunbi Md.Hanif for

the post of President and Sri.Chowra Sandeep

Bhimappa, for the post of Vice-president was within

the knowledge of appellants herein. It is therefore the

submission of the learned counsel that the appellants

having not denied receiving the whip or their

signatures on the whip and the photographs

evidencing the fact that the whip was served on them

are precluded from contending that the whip was not

served on them. The learned counsel would therefore

submit that no fault could be found in the impugned

order passed by the learned Single Judge.

7. Heard the learned counsel Sri Jayakumar

S. Patil for the appellants, learned counsel Sri

Shivakumar R. Kalloor for respondent No.6, learned

counsel Sri B.C. Jaka for respondent No.5 and the

learned Additional Government Advocate Sri

Shivakumar R. Tengli and perused the memorandum

of appeal and the original records.

8. Since certain factual assertions were made,

we called upon learned Additional Government

Advocate to produce the original records from the

office of the Deputy Commissioner and the same was

made available to the Court. We have perused the

original records and we find that contrary to what was

contended on behalf of the complainant before the

Deputy Commissioner that the Whip was served on

the appellants and the other members of the Council

who belongs to INC, on 02.11.2020, the photographs

produced on behalf of the complainant contains a

writing on top of the pages that the Whip is served by

Sri Vasant Honmode on 02.03.2020. The pages on

which the photographs are pasted also contains the

signature of 5th respondent - complainant. We have

seen that the Whip said to have been served on the

appellants does not contain a date. On the contrary it

is stated in the Whip that in the election to be held on

02.11.2020, vote shall be cast in favour of Smt.

Natikar Khairunbi Md. Hanif for the post of President

and Sri Chowra Sandeep Bhimappa, for the post of

Vice-President. The complainant had furnished an

extract of the resolution said to have been passed on

25.10.2020 in the Committee Book / Resolution Book

of the District Congress Committee which bears the

signature of 21 persons, including the signature of the

appellants herein, and a decision is said to have been

taken by the Committee on 25.10.2020 that Smt.

Natikar Khairunbi Md. Hanif will be fielded for the post

of President while Sri Chowra Sandeep Bhimappa will

be fielded for the post of Vice-President, on behalf of

the INC. No doubt, copies of the Whip produced at

Annexures-F5 to F8 contain the name of the

appellants herein and their signatures. However,

what is required to be considered is whether the

complainant was able to prove before the competent

authority, in terms of Section 3(1)(b) of the Act that

the appellants had intentionally, contrary to the

directions issued by the political party to which they

belong or by any person or authority authorized by it

in that behalf, voted in favour of persons who were

not mentioned in the Whip. As rightly submitted by

the learned Senior Counsel, while considering the case

of anti-defection under the provisions of the Act,

having regard to the penal consequences that flow on

an elected Councilor being subjected to

disqualification and its repercussion on the functioning

of the local body as also the City or Township

governed by the local body, the provisions have to be

construed strictly. The Hon'ble Supreme Court has

prescribed rigorous compliance with the provisions of

the Act and the Rules, as found in the decision of

Sadashiv H. Patil (supra).

9. Before reconsidering these factual aspects,

this court is also required to find out from the

constitution of the INC and its Rules as to whether

there is provision for delegation of the authority either

to issue Whip or to serve the same. We have gone

through the constitution of the INC and Rules

amended by the AICC as on 17.11.2007. We do not

find any provision regarding issuance of Whip or the

delegation of power. Therefore, going by the

provision as contained in Section 3(1)(b) of the Act, a

member of the INC, having been elected on the party

symbol, would be liable for disqualification only if it is

proved that such a person has acted contrary to the

directions issued by the authorized authority.

10. It is not disputed in the present case that

the President of the KPCC (I) issued an authorization

dated 29.10.2020 in favour of the fifth respondent

herein who was the President of the District Congress

Committee to issue a whip to its Councilors to cast

vote in favour of two particular candidates. The whip

said to have been issued in favour of the appellants

herein in terms of Annexures-F5 to F8 contains the

signature of the fifth respondent. Therefore, to that

extent it is clear that the whip is issued by the fifth

respondent, authorizedly. However, even according to

the material made available at the hands of the

complainant, it is clear that the fifth respondent has

further delegated the responsibilities of serving the

whip on the sixth respondent herein, as is evident

from Annexure-F18. It is required to be noticed here

that Annexure-F18 does not contain the date.

Further, it is also evident from the photographs found

at Annexure-F series that the sixth respondent has not

served the whip on the appellants. Admittedly, the

General Secretary, one Sri Vasant Honamode is said

to have served the whip on the appellants contrary to

the authorization given by the fifth respondent in

favour of the sixth respondent herein. Therefore, on a

plain reading of the material available on record, it is

evident that the whip was not issued on the appellants

by an authorized person. It is another matter that the

complainant himself has stated that the photographs

at Annexure-F series showing service of whip on the

appellants by Sri Vasant Honamode was on

02.03.2020. No doubt, the Deputy Commissioner

having observed all these discrepancies, had rightly

arrived at a conclusion that there is discrepancy in the

matter of service of whip on the appellants. However,

the Deputy Commissioner has proceeded to place

reliance on other materials such as publication of the

information regarding the candidates fielded by the

political party as found in the newspapers and

statements made by the other members of the INC

was taken into consideration.

11. In this regard, the opinion of the learned

Single Judge that when a case of defection is brought

forth before the competent authority, it is the

preponderance of probabilities rather than direct proof

that should be the test to determine whether there

was a case of defection, would go contrary to the

declared position of law.

12. On the question as to whether judicial

notice of facts reported in newspapers could be taken

as evidence, in a matter falling under the provisions of

the Anti Defection Law, having regard to Sections 78

(2), 81 and 57 of the Indian Evidence Act, a learned

Single Judge of this Court in the case of N. Shivanna

and others vs. The Deputy Commissioner,

Chamrajnagar District & others reported in 2004

(5) KLJ 308 has held that judicial notice of facts

reported in newspapers being of nature of hearse,

cannot be taken as valid evidence, unless proved by

the evidence aliunde.

13. For the reasons stated above, this Court is

of the considered opinion that the decision of the

Deputy Commissioner in holding that the appellants

have defied the whip issued by the fifth respondent

herein and consequently disqualifying the appellants

from the membership of the City Municipal Council,

cannot be sustained.

14. Consequently, we proceed to pass the

following:

ORDER

(i) The writ appeal is allowed. The impugned

order dated 22.07.2021 passed by the

second respondent - Deputy

Commissioner, Vijayapur, at Annexure-J

to the writ petition is hereby quashed and

set aside.

(ii) The impugned order dated 04.10.2021

passed in W.P.No.201461/2021 is also set

aside.

(iii) The complaint filed at the hands of the

fifth respondent herein before the second

respondent - Deputy Commissioner

seeking disqualification of the appellants,

is also rejected.

Ordered accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

msr/BL/swk