Karnataka High Court
Smt.Bhagyamma G. N., vs The Government Of Karnataka on 8 September, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF SEPTEMBER, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.14171/2021 (LB-RES)
BETWEEN:
SMT.BHAGYAMMA G.N.,
W/O GANESH V.,
AGED ABOUT 37 YEARS
RESIDING AT RAMANNAJJANA BEEDHI
WARD NO.9, KORATAGERE TOWN - 572 129
TUMAKURU DISTRICT.
... PETITIONER
(BY SRI UGRAPPA V.S., ADVOCATE (PHYSICAL HEARING))
AND:
1. THE GOVERNMENT OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF MUNICIPAL ADMINISTRATION
DR AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER
TUMAKURU DISTRICT
TUMAKURU - 571 202
3. THE CHIEF OFFICER
KORATAGERE TOWN PANCHAYATH
KORATAGERE - 571 202
TUMAKURU DISTRICT.
2
4. THE TAHSILDAR / RETURNING OFFICER
THE TOWN PANCHAYATH
KORATEGERE TOWN - 572 101
TUMAKURU DISTRICT.
5. THE TOWN PANCHAYATH
KORATAGERE TOWN - 572 101
TUMAKURU DISTRICT
REPRESENTED BY ITS CHIEF OFFICER
6. SRI R.C.ANJINAPPA PRESIDENT
TUMAKURU DISTRICT JANATHA DAL (S)
ASOKA ROAD, TUMAKURU - 572 101.
7. SMT.MANJULA
W/O SATHYANARAYANA
THE PRESIDENT, KORATAGERE TOWN
PANCHAYTH, KORATAGERE - 572 101.
8. SMT.K.V.BHARATHI
W/O SIDDAMALLAPPA
VICE PRESIDENT, KORATAGERE TOWN
PANCHAYATH, KORATAGERE - 572 101.
... RESPONDENTS
(BY SRI C.M.POONACHA, AGA A/W
SRI NITHYANANDA K.R., HCGP FOR R1, 2 AND 4
(PHYSICAL HEARING)
SRI A.NAGARAJAPPA, ADVOCATE FOR R3 AND R5
(PHYSICAL HEARING)
SRI G.S.BALAGANGADHAR, ADVOCATE FOR R6
(PHYSICAL HEARING)
NOTICE NOT ORDERED IN RESPECT OF R7 AND R8))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORD FROM THE OFFICE OF THE R2
PERTAINS TO THE IMPUGNED ORDER DATED 26.7.2021
PASSED BY THE R2 AT ANNEXURE-K; QUASH THE
3
IMPUGNED ORDER DATED 26.7.2021 PASSED BY THE R2
IN CASE AT ANNEXURE-K.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.08.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
The petitioner in this writ petition calls in question
the order dated 26-07-2021 by which the petitioner is
disqualified to be a Member of the Koratagere Town
Panchayat, Koratagere, Tumkur District (hereinafter
referred to as the 'Panchayat' for short) invoking the
provisions of the Karnataka Local Authorities
(Prohibition of Defection) Act, 1987 (hereinafter referred
to as 'the Act' for short).
2. Brief facts leading to the filing of the present
petition, as borne out from the pleadings, are as follows:
The petitioner, a resident of Koratagere was
elected as a Member of the Panchayat pursuant to
elections conducted on 31.08.2018 under Janatha Dal
(Secular) ticket. Though elections were held on
31.08.2018 neither committees were constituted nor
elections to the office of President or Vice-President took
place. After about two years of elections of Members to
the Panchayat, elections for the office of the President
and Vice-President were set in motion by issuance of
calendar of events on 27-10-2020 directing that
elections would be held for the offices of President and
Vice-President on 5-11-2020. On issuance of calendar
of events, the 6th respondent/President of Tumkur
District Janatha Dal (Secular) issued a whip to all the
Members of his party including the petitioner on
28-10-2020 for attending the meeting and voting in the
elections.
3. The elections were held on 5-11-2020 to which
the petitioner remained absent and the resultant
position is that a particular candidate of a different
political party was elected. After about 5 days of
elections, the petitioner submitted a certificate on
10-11-2020 which depicted that the petitioner was
suffering from viral fever and was under treatment on
3-11-2020 and was advised bed rest for a week from
3-11-2020. The petitioner gave this as a reason for not
attending the meeting/elections that were slated to be
and held on 5-11-2020. On the ground that the
petitioner had violated the whip that was issued, the
President of the party who had issued the whip
communicated to the Chief Officer of the Panchayat for
removal of the petitioner from the membership of the
Panchayat on the ground that she has violated the whip
invoking the provisions of the Act. This was
communicated to the Deputy Commissioner as well who
issued a show cause notice to the petitioner on
17-03-2021 seeking the petitioner to show cause as to
why she should not be removed from membership of the
Panchayat invoking the provisions of the Act. The
petitioner gave her reply on 23.03.2021. Not being
satisfied with the reply, proceedings were instituted
before the Deputy Commissioner under the Act
resulting in passing of the impugned order removing the
petitioner from the primary membership of the
Panchayat on the ground that the petitioner had
violated the whip and had to undergo action under the
Act. It is this order of the Deputy Commissioner dated
26-07-2021 that is called in question in this writ
petition.
4. Heard Sri V.S.Ugrappa, learned counsel
appearing for the petitioner, Sri C.M.Poonacha, learned
Additional Government Advocate along with
Sri Nithyananda K.R., learned High Court Government
Pleader appearing for respondents 1, 2 and 4,
Sri A.Nagarajappa, learned counsel appearing for
respondents 3 and 5 and Sri G.S.Balagangadhar,
learned counsel appearing for Respondent No.6.
5. The learned counsel Sri V.S.Ugrappa, appearing
for petitioner, would vehemently argue and contend that
in terms of Section 4 of the Act communication for
initiation of proceedings against an alleged defectionist
is to be made within 24 hours to the Competent
Authority. Elections took place on 5-11-2020 and the
complaint was lodged by the 6th respondent/President
of the party on 18.01.2021 and the complaint is placed
for consideration before the Deputy Commissioner on
08-02-2021. He would urge the following contentions:
(i) The action of the Deputy Commissioner is in
violation of the mandate of Section 4. The Deputy
Commissioner had to complete the proceedings in
60 days time as depicted in sub-section (2) of
Section 4 of the Act.
(ii) The Deputy Commissioner takes 154 days to
complete the proceedings as against the mandate
of the statute which depicts completion of
proceedings in 60 days. Here again the impugned
order is in violation of the statute.
(iii) No opportunity worth the name was given to the
petitioner to defend the action.
(iv) The petitioner had produced medical certificate
issued by the competent Physician which ought to
have been taken into consideration.
(v) There was no election conducted at all as there
was only one contestant each for the offices of
President and Vice-President.
On the aforesaid grounds, the learned counsel would
submit that the order impugned is vitiated. He would
place reliance upon the following judgments:
(i) Smt.Kittur Yasmin Riyaz & Another Vs. Deputy
Commissioner, Uttara Kannada District & Others1
(ii) Ravi S. Naik Vs. Union Of India And Others2
(iIii) Sadashiv H. Patil Vs. Vithal D.Teke And Others3
1 ILR 2009 KAR 47
2 AIR 1994 SC 1558
3 (2000)8 SCC 82
6. On the other hand, learned Additional
Government Advocate and the learned counsel
appearing for 6th respondent/President, in unison, have
raised the following contra contentions:
(i) The petitioner was admittedly absent when
elections took place on the plea that she was
unwell.
(ii) It is undisputed that the petitioner had violated
the whip that was issued by the party.
(iii) The Act though directs that the complaint be
placed before the Competent Authority within 24
hours, the same is directory and not mandatory.
(iv) With regard to the proceedings that have gone on
for 154 days as against 60 days, both the learned
counsel would submit that due to prevailing
situation of COVID-19 the Deputy Commissioner
had to cancel the sittings on three occasions as he
was in-charge of entire District monitoring COVID-
19 cases.
(v) The petitioner was afforded all opportunities in the
proceedings who never raised any of the objections
that are now being raised herein before the Deputy
Commissioner.
The learned counsel would place reliance upon the
following judgments:
(i) Dharmappa Sabanna Madar Vs. Chief Secretary 4
(ii) Dharmappa Sabanna Madar Vs. Chief Secretary,
Zilla Parishad5
(iii) H.S.Devaraj and others Vs. State Election
Commissioner and Others6
(iv) Ireppa Thirakappa Shouradha Vs. Deputy
Commissioner, Haveri District, Haveri7
7. In reply, the learned counsel for the petitioner
would submit that the whip, is no whip at all, in the eye
of law as the party President of the District had no
4 ILR 1990 KAR 1637
5 ILR 1991 KAR 3723
6 ILR 2000 KAR 1493
7 (2005)2 KAR.L.J. 193
authority to issue the whip as 'B' Form for contesting
elections was signed by the National President Sri
H.D.Deve Gowda.
8. I have given my anxious consideration to the
respective submissions made across the bar and in
furtherance whereof, the only issue that calls for my
consideration is,
Whether removal of the petitioner from
primary membership of the Panchayat is valid in
the eye of law?
9. The facts aforementioned and undisputed do
not call for reiteration. The petitioner was elected as a
Member of the Panchayat on 31.08.2018. Elections for
the offices of President and Vide-President of the
Panchayat were slated to be held on 5.11.2020 by a
notice issued by the Tahsildar and the Returning Officer
drawing up calendar of events. The calendar of events
reads as follows:
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Pursuant to drawing up of calendar of events in terms of
the notification dated 27-10-2020, the President of the
Karnataka Pradesh Janatha Dal (Secular) of Tumkur
District issued whips to every one of its members
including the petitioner. The whip so issued to the
petitioner reads as follows:
"gÀªÀjUÉ
²æêÀÄw ¨sÁUÀåªÀÄä f.PÉÆÃA UÀuÉÃ±ï «
gÁªÀiÁdÓt£À©Ã¢ 9£Éà ªÁqïð ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄ
PÉÆgÀlUÉgÉ mË£ï
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G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÁ ¸À¨sÉAiÀÄ£ÀÄß PÀgÉAiÀįÁVzÉ F ¸À¨sÉAiÀÄ°è
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¥ÀgÀªÁV £Á£ÀÄ ªÀÄvÀ ZÀ¯Á¬Ä¸ÀÄvÉÛãÉ.
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01 ²æêÀÄw ¨sÁUÀåªÀÄä.f PÉÆÃA Sd/-
UÀuÉñï.«
10. In terms of the whip, the petitioner ought to be
present in the meeting hall on the date of election on
5-11-2020, but skipped the same on the ground that
she was suffering from viral fever and was a suspected
case of COVID-19; that no test with regard to COVID-19
was placed on record, as only medical certificate was
handed over to the Competent Authority as justification
for the absence. The relevant portion of the medical
certificate reads as follows:-
"This is to certify that Mrs. Bhagyamma
W/o Ganesh is suffering from pneumonia and
LBA of Viral Fever and is under my treatment
on 3-11-2020, on OPD basis and advised rest
for a week"
The certificate is issued by one Renukaa Hospital which
according to the petitioner is a reputed hospital. The
narration in the medical certificate shows that the
petitioner was suffering from viral fever and was under
treatment of a doctor who had advised rest for a week.
According to the medical certificate the petitioner
remained indisposed from 3-11-2020 up to 10.11.2020
the date on which the medical certificate was issued.
Elections were held on 5-11-2020 beginning with the
submission of nomination papers and ending with
declaration of result all of which on the same day i.e.,
on 5-11-2020. In the light of calendar of events being
drawn up in the manner in which it is depicted, it is
germane to test every one of the submissions made by
the learned counsel for the petitioner.
11. The first contention the learned counsel for
the petitioner contended that there was no election
worth the name conducted as there was only one
candidate each for the posts of President and Vice-
President and the whip that was issued for attendance
where there was no election at all is redundant is
unacceptable for the reason that elections began and
ended on the same day i.e., 5-11-2020 in the presence
of Members. It cannot be imagined how the petitioner
would come to know that there would be no contest as
only one candidate each for the offices of President and
Vice-President are filing their nominations in
justification of absence. If the petitioner had been
present and contended as urged herein it would be
different circumstance altogether. Staying outside and
contending that there was no election worth the name
as there was only one nominee each for the posts is a
ruse or blind justification of an act of the petitioner
which is admittedly in violation of the whip. Therefore
this contention of the petitioner deserves to be rejected.
12. The second contention is intertwined with
the first urged and what is narrated hereinabove is,
whether the President of District Unit of the Party could
have issued the whip notwithstanding the fact that 'B'
Form was issued by the National President of Janatha
Dal (Secular). The disqualification of a Member is dealt
with under Section 3 of the Act and the circumstances
narrated therein. The provision that is germane for the
subject lis is extracted for the purpose of quick
reference:
"3. Disqualification on the ground of
defection - (1) Subject to the Provisions of
Sections 3-A, 3-B and 4, a Councillor or a
member, belonging to any political party,
shall be disqualified for being such Councillor
or member, -
(a) xx xx xx xx
(b) if he votes or abstains from voting
in, or intentionally remains absent
from any meeting of the Municipal
Corporation, Muncipal Council,
Town Panchayat, Zilla panchayat
or Taluk Panchayat, contrary to
any direction issued by the
political party to which he belongs
or by any person or authority
authorized by it in this behalf
without obtaining the prior
permission of such party, person
or authority and such voting,
abstention or absence has not
been condoned by such political
party, person or authority within
fifteen days from the date of
voting or such abstention or
absence."
In terms of the afore-extracted Section, a member
belonging to any political party shall be disqualified for
being such a member if he votes or abstains from voting
or intentionally remains absent from any meeting of the
Municipal corporation inter alia contrary to any
direction issued by the political party to which they
belong or any direction issued by any authority
authorized by the political party on that behalf, without
obtaining prior permission.
13. The contention of the learned counsel if tested
on the anvil of the aforesaid provision would become
unacceptable for the reason that a clear direction was
issued by the District President of the political party to
which the petitioner belonged. It cannot be said that
the District President had no authority to do so, more
so, in the light of the fact that several delegations
having been done the past, the nearest past even, have
been issued by the District Presidents of such political
parties. It would not be out of place to refer to several
delegations of issuance of whip in the past or whip
being issued by the District Presidents. A few of the
whips issued in the past till the present, as produced by
the learned counsel appearing for 6th respondent, are
extracted herein for the purpose of quick reference:
Whip issued on 29.03.2012:
"gÀªÀjUÉ
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vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄ, PÉÆgÀlUÉgÉ
ªÀiÁ£ÀågÉÃ,
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«µÀAiÀĪÁV ¢£ÁAPÀ:30.03.2012 gÀAzÀÄ ±ÀÄPÀæªÁgÀ ¨É½UÉÎ11.00
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(eÁvÁåwÃvÀ) ¥ÀPÀëzÀ C¨sÀåyðAiÀiÁzÀ ¹zÀÝUÀAUÀªÀÄä ¥ÀgÀªÁV vÀªÀÄäUÀ¼À
ªÀÄvÀ ZÀ¯Á¬Ä¸À¨ÉÃPÉAzÀÄ F ¸ÀZÉÃvÀPÁzÉñÀ(«Ã¥ï) ¤ÃqÀĪÀ ªÀÄÆ®PÀ
vÀªÀÄUÉ ¤zÉÃð±À£À ¤ÃqÀ¯ÁVzÉ.
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ZÀ¯Á¬Ä¹zÉ EgÀĪÀÅzÀÄ CxÀªÁ ªÀÄvÀ ZÀ¯ÁªÀuɬÄAzÀ zÀÆgÀ
G½AiÀÄĪÀÅzÀÄ, »ÃUÉ ªÀiÁrzÀ ¥ÀPÀëzÀ°è PÀ£ÁðlPÀ ¥ÀAZÁAiÀÄvï gÁeï
(¥ÀPÁëAvÀgÀ ¤µÉÃzÀ) PÁ¬ÄzÉ C£ÀéAiÀÄ ¤ªÀÄä «gÀÄzÀÞ ¸ÀÆPÀÛ PÀæªÀÄ
PÉÊUÉƼÀî¯ÁUÀĪÀÅzÉAzÀÄ F ªÀÄÆ®PÀ ¸ÀZÉÃvÀPÁzÉñÀªÀ£ÀÄß d£ÀvÁzÀ¼À
(eÁvÁåwÃvÀ) ¥ÀPÀëzÀ ªÀw¬ÄAzÀ ¤zÉÃð²¸À¯ÁVzÉ."
Whip issued to two different members with regard
to Tumkur Taluk Panchayat election for President
on 08.07.2020:
¢£ÁAPÀ:08.07.2020
¸ÀZÉÃvÀ£À («¥ï)
¢£ÁAPÀ 09-07-2020£Éà UÀÄgÀĪÁgÀzÀAzÀÄ vÀĪÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ
¥ÀAZÁ¬ÄwAiÀÄ CzsÀåPÀëgÀ ¸ÁÜ£ÀPÉÌ ²æÃ/²ÃªÀÄw.²ªÀPÀĪÀiÁgÀ ¸Áé«Ä
ºÉZï.J¸ï. EªÀgÀÄ ¸Àà¢üð¹zÀÄÝ, ¸ÀzÀj ZÀÄ£ÁªÀuÉAiÀÄ°è vÁªÀÅ
G¥À¹ÜvÀjzÀÄÝ, EªÀgÀ ¥ÀgÀªÁV ªÀÄvÀ / PÉÊ JvÀÄÛªÀÅzÀgÀ ªÀÄÆ®PÀ ªÀÄvÀ
ZÀ¯Á¬Ä¸ÀĪÀAvÉ £ÀªÀÄä ¥ÀPÀëzÀ ZÀÄ£Á¬ÄvÀ ¸ÀzÀ¸ÀågÁzÀ vÀªÀÄUÉ F
ªÀÄÆ®PÀ ¸ÀZÉÃvÀ£À («¥ï) ¤ÃqÀ¯ÁVzÉ.
¸À»/-
(n.Dgï.£ÁUÀgÁdÄ)
PÁAiÀÄðzsÀåPÀëgÀÄ
f¯Áè d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ)
vÀĪÀÄPÀÆgÀÄ f¯Éè.
EªÀjUÉ,
¥Àæ¢Ã¥ï Dgï ©£ï gÀ«
vÁ®ÆèPÀÄ ¥ÀAZÁ¬Äw ¸ÀzÀ¸ÀågÀÄ
£ÁUÀªÀ°è PÉëÃvÀæ
vÀĪÀÄPÀÆgÀÄ."
¢£ÁAPÀ:08.07.2020
¸ÀZÉÃvÀ£À («¥ï)
¢£ÁAPÀ 09-07-2020£Éà UÀÄgÀĪÁgÀzÀAzÀÄ vÀĪÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ
¥ÀAZÁ¬ÄwAiÀÄ CzsÀåPÀëgÀ ¸ÁÜ£ÀPÉÌ ²æÃ/²ÃªÀÄw.²ªÀPÀĪÀiÁgÀ ¸Áé«Ä
ºÉZï.J¸ï. EªÀgÀÄ ¸Àà¢üð¹zÀÄÝ, ¸ÀzÀj ZÀÄ£ÁªÀuÉAiÀÄ°è vÁªÀÅ
G¥À¹ÜvÀjzÀÄÝ, EªÀgÀ ¥ÀgÀªÁV ªÀÄvÀ / PÉÊ JvÀÄÛªÀÅzÀgÀ ªÀÄÆ®PÀ ªÀÄvÀ
ZÀ¯Á¬Ä¸ÀĪÀAvÉ £ÀªÀÄä ¥ÀPÀëzÀ ZÀÄ£Á¬ÄvÀ ¸ÀzÀ¸ÀågÁzÀ vÀªÀÄUÉ F
ªÀÄÆ®PÀ ¸ÀZÉÃvÀ£À («¥ï) ¤ÃqÀ¯ÁVzÉ.
¸À»/-
(n.Dgï.£ÁUÀgÁdÄ)
PÁAiÀÄðzsÀåPÀëgÀÄ
f¯Áè d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ)
vÀĪÀÄPÀÆgÀÄ f¯Éè.
EªÀjUÉ,
£ÉÃvÁæªÀw W/O
¸ÀÄgÉñÀ PÉ.J¸ï.
vÁ.¥ÀA.¸ÀzÀ¸ÀågÀÄ
PɸÀÆÛgÀÄ PÉëÃvÀæ
vÀĪÀÄPÀÆgÀÄ."
Whip issued in the subject lis dated 27.10.2020:
"«µÀAiÀÄ: ¸ÀܽÃAiÀÄ ¸ÀA¸ÉÜUÀ¼À CzsÀåPÀëgÀ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ
ZÀÄ£ÁªÀuÉAiÀÄ°è ¸ÀaÃvÀPÁzÉñÀ («¥ï) eÁj ªÀiÁqÀĪÀ §UÉÎ.
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢¹zÀAvÉ vÀĪÀÄPÀÆgÀÄ f¯Éè,
d£ÀvÁzÀ¼À (eÁvÀåwÃvÀ) ¥ÀPÀëzÀ f¯ÁèzsÀåPÀëgÁzÀ Dgï.¹.CAfãÀ¥Àà
£ÀªÀjUÉ F ¥ÀvÀæzÀ ªÀÄÆ®PÀ w½AiÀÄ ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ, vÀĪÀÄPÀÆgÀÄ
f¯Éè, PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁAiÀÄwAiÀÄ ZÀÄ£ÁªÀuÉAiÀÄ°è £ÀªÀÄä
¥ÀPÀëzÀªÀgÉà ºÉZÀÄÑ C¨sÀåyðUÀ¼ÀÄ UÉ®ªÀÅ ¸Á¢¹zÀÄÝ ªÀÄÄAzÉ §gÀĪÀ
PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬ÄÛAiÀÄ CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ DAiÉÄÌ
ªÀiÁqÀĪÀ «ZÁgÀzÀ°è £ÀªÀÄä ¥ÀPÀë¢AzÀ ZÀÄ£Á¬ÄvÀgÁzÀ ¥ÀlÖt
¥ÀAZÁ¬ÄwAiÀÄ ¸ÀzÀ¸ÀågÀÄUÀ½UÉ F ªÀÄÆ®PÀ w½AiÀÄ ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ
ªÀÄÄA¢£À ¢£ÀUÀ¼À°è PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬ÄÛAiÀÄ CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ
G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉAiÀÄ ¢£À ¸À¨sÉUÉ ºÁdgÁV CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ
G¥ÁzsÀåPÀëgÀ DAiÉÄÌUÉ £ÀªÀÄä ¥ÀPÀëzÀªÀjUÉ ªÀÄvÀ ºÁPÀ¨ÉÃPÉAzÀÄ w½¹
ºÁUÀÆ ¥ÀPÀëzÀ ªÀZÀð¹ìUÉ zÀPÉÌ ¨ÁgÀzÀ ºÁUÉ ªÀÄvÀÄÛ ¥ÀPÀë «gÉÆâ
ZÀlĪÀnPÉ £ÉqɸÀĪÀªÀgÀ «gÀÄzÀÝ ¸ÀÆPÀÛ PÀæªÀÄ PÉÊUÉƼÀÄîªÀ C¢üPÁgÀ ªÀÄvÀÄÛ
£ÀªÀÄä ¥ÀPÀë¢AzÀ DAiÉÄÌAiÀiÁzÀ J¯Áè ¸ÀzÀ¸ÀåjUÀÆ ¥ÀPÀëzÀ ¥ÀgÀªÁV
¸ÀZÉÃvÀPÁzÉñÀ («¥ï) eÁj ªÀiÁqÀĪÀ ¸ÀA¥ÀÆtð C¢üPÁgÀ
vÀĪÀÄPÀÆgÀÄ f¯ÁèzsÀåPÀëgÁzÀ ¤ªÀÄUÉ ¤ÃrgÀÄvÉÛãÉ."
(emphasis added)
Therefore, in the light of the provision of the Act and the
afore-extracted whip issued from time to time, it cannot
be contended by the petitioner that whip issued by the
President of the Tumkur District Unit of the Janatha
Dal (Secular) was without authority of law. The said
contention deserves to be rejected.
14. The third contention of the petitioner is with
regard to violation of statute insofar as it concerns
Section 4 of the Act. Section 4 of the Act reads as
follows:-
"4. Decision on the question as to
disqualification on the ground of
defection.- (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 authority,-
(a) in a case falling under clause (a) of
sub-section (1) after the member or the
councillor gives up the membership of the
political party;
(b) in a case falling under clause (b) of
sub-section (1), after the expiry of fifteen days
specified therein;
(c) in a case falling under sub-section
(2), after he joins the political party ; and
(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,-
(i) in the case of Zilla Panchayat, to
the State Election
Commissioner;
(ii) in the case of Municipal
Corporation, to the Divisional
Commissioner;
(iii) in the case of a City or Town
Municipal Council or Town
Panchayat to the Deputy
Commissioner;
(iv) in the case of a Taluk Panchayat,
to the State Election
Commissioner
who shall decide the question within
sixty days after the receipt by him of the
reference and his decision shall be final.
Explanation.- In this section,- (1) "Chief
Executive Officer" means,-
(a) in the case of Zilla Panchayat, the
Chief Executive Officer of the Zilla
Panchayat;
(b) in the case of a Taluk Panchayat,
the Executive Officer of the Taluk
Panchayat;
(c) in the case of a Municipal
Corporation, the Commissioner;
(d) in the case of a City Municipal
Council, the Municipal
Commissioner,
(e) in the case of a Town Municipal
Council, the Chief Officer;
(f) in the case of a Town Panchayat,
the Chief Officer;
(2) "Local Authority" means the Zilla
Panchayat, Taluk Panchayat, Municipal
Corporation, City or Town Municipal Council
or Town Pancayat.
(3) "State Election Commissioner" means
the State Election Commissioner appointed
under Section 308 of the Karnataka
Panchayat Raj Act, 1993."
(emphasis supplied)
Section 4(2) of the Act mandates that the complaint that
is registered is to be transmitted to the Competent
Authority within 24 hours of its receipt and that
proceedings shall be concluded within 60 days from its
commencement. It is these provisions that the learned
counsel for the petitioner seeks to rely on to contend
that proceedings are vitiated on account of violation of
the mandate of the aforesaid provisions.
15. Insofar as transmission of the complaint
registered to the Competent Authority within 24 hours
is concerned, the provision though reads it to be
mandatory, this Court interpreting the very provision
has held it to be directory as there is no penal
consequence that is depicted under the Act for violation
of the said provision, in the case of DHARMAPPA
SABANNA MADAR v. CHIEF SECRETARY8, wherein
this Court held as follows:-
"6. The learned Counsel for the
petitioners contended that the impugned
order is vitiated for non-compliance with the
requirement of Section 4 of the Karnataka
Local Authorities (Prohibition of Defection) Act
(in short the 'Act') in as much as the Secretary
of the Mandal Panchayat should have
referred the complaint to the Chief Secretary,
Zilla Parishat within 24 hours from the receipt
of such a complaint for his decision and
further the Chief Secretary of the Zilla
Parishat should have decided the question
within seven days after the receipt of the
same by him. The contention is that there is
ILR 1990 KAR 1637
non-compliance with these requirements of
law.
11. The learned Government Pleader
appearing for the State submitted that though
Section 4 of the Act contemplates that the
complaint should be communicated by the
Secretary, Mandal Panchayat, within 24
hours of the receipt of the complaint by the
Chief Secretary, Zilla Parishat, the time limit
of 24 hours is only directory and not
mandatory. The learned Government Pleader
also submitted that the time limit of seven
days provided by Section 4 within which time
decision has to be rendered on the question
referred to it, is equally directory and not
mandatory. The further contention is that it is
not shown how the petitioners are affected as
a result of late or belated reference of the
complaint by the Secretary of the Mandal
Panchayat to the Chief Secretary of the Zilla
Parishat and also on account of disposal of
reference a short time beyond seven days. It
would be necessary to reproduce Section 3 of
the Act:
"3. Disqualification on the ground
of defection:
(1) Subject to the provisions of
Section 4, a Councillor or a Member,
belonging to any political party, shall
be disqualified for being such
Councillor or member-
(a) If he has voluntarily given up
his membership of such political
party; or
(b) If he votes or abstains from
voting in any meeting if the Municipal
Corporation, Municipal Council, Zilla
Parishad or Mandal Panchayat
contrary to any direction issued by
the political party to which he
belongs or by any person or authority
authorised by it in this behalf,
without obtaining, in either case, the
prior permission of such political
party, person or authority and such
voting or abstention has not been
condoned by such political party,
person or authority within fifteen
days from the date of voting or such
abstention.
Provided that no Councillor or
Member shall be so disqualified if the
number of Councillors or Members so
voting or abstaining from voting
constitutes not less than one half of the
total number of Councillors or Members
belonging to the political party in Zilla
Parishad, Mandal Panchayat, Municipal
Corporation or Municipal Council, as the
case may be."
Thus the member of Mandal Panchayat
would suffer disqualification under sub-
section 1(b) of Section 3 if the member votes
or abstains from voting in any meeting of the
Mandal Panchayat in violation of any
direction issued by the political party to which
he belongs without obtaining prior permission
of such political party provided such voting or
abstention has not been condoned by such
political party within fifteen days from the
date of voting or such abstention. There was
no condonation of the voting or abstention in
violation of the party whip is not in dispute.
That the petitioners belong to Janata Party
and they voted against the resolution
whereas nine other members of the same
party voted in favour of the resolution also is
not in dispute. It is not the case of the
petitioners that they do not belong to Janata
Party. Their case is that they were not aware
of the direction issued by the party which I
have already rejected on the basis of material
on record. Therefore, the question to be
considered is whether the petitioners are
liable to disqualification. It is necessary to
refer to the proviso to Section 3(b) of the Act.
According to the proviso, no member shall be
disqualified if the number of members so
voting or abstaining from voting constitutes
not less than one half of the total number of
members belonging to the political party in the
Mandal Panchayat. The total number of
members of the Janata Party in the instant
case is 11 and the number of members who
have defied the party direction are two and
nine others have voted in favour of the
resolution. In these circumstances the proviso
to sub-section (b) of Section 3 will be of no
assistance to the petitioners. Section 4 of the
Act reads thus:
"Decision on the question as to
disqualification on the ground of defection-
(1) 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-
(i) in the case of Zilla Parishad, to
the Chief Secretary to Government;
(ii) in the case of Municipal
Corporation, to the Divisional
Commissioner;
(iii) in the case of a City or Town
Municipal Council to the Deputy
Commissioner;
(iv) in the case of a Mandal
Panchayat, to the Chief Secretary to the
Zilla Parishad;
who shall decide the question within 7
days after the receipt by him of the reference
and his decision shall be final.
It is true that the complaint of defection
was lodged by the party on 14-1-1988 with
the Secretary of the Mandal Panchayat and
thereafter the said Secretary referred the
complaint for decision to the Chief Secretary
of the Zilla Parishad vide letter dated 18-1-
1988. The time of four days has elapsed
between the date of receipt of the complaint
from the Secretary Mandal Panchayat and
then reference of the complaint to the Chief
Secretary of the Zilla Parishad. According to
Section 4 of the Act, reference shall be made
within twenty-four hours from the receipt of
such a complaint. The question whether or
not the provision is mandatory or
directory has to be considered in the
context of impact of non-observation of
the time limit on the proceedings as well
as on the petitioners. The learned
Counsel for the petitioners was not able
to explain as to how the petitioners are
affected just because the complaint was
not referred to the Competent Authority
within twenty-four hours but after a
lapse of about 4 days and also as to how
the proceedings are affected on account
of this delay. The intention that could be
gathered from the word 'shall' in the
context is that it would be preferable to
refer the complaint for decision within
twenty-four hours and the meaning of the
word 'shall' has to be construed as the
meaning of the word 'may'. It cannot be
said that by not submitting the reference
for decision within twenty-four hours
from the receipt of the complaint the
purpose of law is defeated in the absence
of any adverse consequences either to the
petitioners or the proceedings in respect
of which the decision is to be taken. It
may also be mentioned that the provision
of law in Section 4 of the Act
contemplating a time limit cannot be
applied too harshly or rigidly, especially
in the context of the fact that the law is
concerned with the administration of the
affairs of a village republic. It would be
unnatural and also unreasonable to
presume that the intention of law was to
obliterate a complaint if reference was
not made within twenty-four hours from
the receipt of the complaint. Similarly,
in regard to the word 'shall' used in the
sentence "who shall decide the question
within seven days after the receipt by
him of the reference and his decision
shall be final," has to be held as
directory and not mandatory. The
intention of this proviso appears to be
that as far as possible the decision shall
be rendered within seven days after the
receipt of the reference and it cannot be
said that the decision became null and
void if it was not rendered within 7 days
from the date of receipt of the complaint.
What adverse consequences would follow
if a decision is not rendered within a
time limit of 7 days is not provided in the
statute. In these circumstances, it is not
possible to attach too much importance
to the word 'shall' in the sense that it is
a statutory dictate and not a statutory
direction. Locking from any angle after a
careful consideration of these provisions
of law and the non-existence of adverse
consequences resulting from relaxation
of the time limit set down under the said
provisions, I am of the opinion that the
word 'shall' used in Section 4 has to be
construed as 'may', as flexibility would
have it."
(emphasis supplied)
This judgment rendered by the learned single Judge was
carried in appeal by the writ petitioner, which also came
to be dismissed by the Division Bench by its judgment
dated 19-09-1991 in Writ Appeal Nos.712 and 713 of
1990 reported under the very same title in ILR 1991
KAR 3723, by holding as follows:-
"8. We have given our careful
consideration to the above arguments. We are
clearly of the view that neither of them could
be held to be tenable. Our reasons are as
under:
On a perusal of the records produced by
the learned Government Advocate, it is clear
that on 24-12-1987 a party whip was issued
calling upon the Members belonging to
Janatha Party not to vote against item 10 of
the agenda. This party whip was sent by
Certificate of Posting and the names of all the
Members to whom Certificate of Posting was
sent is found in the record. Therefore, it does
not lie in the mouth of the appellants to say
that they did not receive them by post. The
presumption under Section 114 of the Indian
Evidence Act could legitimately be invoked as
is done by the learned Judge.
We may also refer to the Decision
in Mrs. Achamma Thomas v. E.R.
Fairman [AIR 1970 Mysore 77.] wherein it
has been held thus:
"(C) Evidence Act (1872),
Section 114 - Notice of termination of
tenancy - Notice sent under
certificate of posting - Presumption
arises that the notice has been duly
delivered to addressee - [Transfer of
Property Act (1882), Section 106] -
[Mysore General Clauses Act (3 of
1899), Section 27] - AIR 1968 Cal 49.
Rel. on.
xxxxxxxxx
Quite apart from what I have
stated with regard to the service of
registered notice or affixation of the
notice on a conspicuous part of the
premises, it is enough to hold that in
this case, there has been due service
of notice by virtue of the fact that the
notice has been sent by post under
"certificate of posting" and the
presumption arises under Section
114(f) of the Indian Evidence Act that
the letter has been duly delivered to
the addressee as the letter has been
addressed to the residential address
of the respondent tenant."
Then the next question would be,
whether the failure to hear by the Chief
Secretary would invalidate his order?
Certainly, the Courts have repeatedly held
that the observance of principles of natural
justice is not a mere formality and ritual, but
it must be for a useful purpose. Now, what is
it the appellants could have done if they had
been heard by the Chief Secretary before the
final order on 27-1-1988? The facts are
admitted that there was a party whip, that
the appellants did vote against the resolution
in defiance of the party whip. If that is the
admitted fact where is the need for hearing at
all. We do not consider that principles of
natural justice must be applied in vacuum.
Therefore, we not think that there is any
scope for the application of principles laid
down by the learned Judge in (1988) 23
Reports (Karnataka) 492 [(1988) 23 Reports
(Karnataka) 492.] . In that case it also
requires to be noticed, that there were clear
denial of voting against. Therefore it became a
dominant issue. That is not so here.
9. With this, we pass on to the
scope of sub-section (2) of Section 4 of the
Act. We will do well to extract the
particular sub-section:
"(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-
(i) in the case of Zilla Parishad, to
the Chief Secretary to Government;
(ii) in the case of Municipal
Corporation, to the Divisional
Commissioner;
(iii) in the case of a City or Town
Municipal Council, to the Deputy
Commissioner;
(iv) in the case of a Mandal
Panchayat, to the Chief Secretary of
the Zilla Parishad;
He shall decide the question within
seven days after the receipt by him of the
reference and his decision shall be
final."
No doubt, in two places, the word
'shall' is used. It cannot be denied that
'shall' normally should be construed as
mandatory. But what requires to be
carefully observed is the Act nowhere
prescribes the consequence of not
following the procedure. In other words,
where the Legislature has thought fit not
to penalise the non-observance of either
referring the complaint within 24 hours
by the Chief Executive Officer to the
Chief Secretary or the Chief Secretary
passing the order within 7 days after the
receipt of the said reference, we should
think it cannot be regarded as
mandatory. In other words, the
Legislature was anxious to see that the
action is taken in a case of a complaint
on the ground of defiance with utmost
expedition. To our mind it means
emphasising the obligation on the
statutory authorities to determine the
matter speedily. Therefore, it cannot,
straightaway lead to the conclusion that
because there is violation of sub-section
(2) of Section 4 of the Act, the order
passed by the Chief Secretary is rendered
void. The Court may well conceive of
such a situation where a Chief Secretary
is otherwise pre-occupied on an
important work relating to Zilla
Parishad - for example flood relief and if
there is a delay of one day, does it mean
that the order rendered by him is ab
initio void! We feel we should not
interpret so unless of course the Statute
itself has prescribed the consequence to
follow in the event of non-observation.
10. It is not denied nor can it be
denied that the Act nowhere prescribed a
consequence, penalty or otherwise,
failure to follow this. Therefore, it stands
to reason that it must be construed as
directory. We may refer to the leading
Decision of the Supreme Court in State of
U.P. v. Manbodhan Lal [AIR 1957 SC 912.]
. That related to the interpretation of
Article 320(3)(c). It is enough if we
extract Head-notes (b) & (c) and Para-11
of the Judgment:
"(b) Constitution of India, Article
320(3)(c) - "Memorials or petitions"
(Words and phrases)
According to the strict construction
of the words of Article 320(3)(c), an
application for review would be covered
by the words "Memories or petitions".
(c) Interpretation of Statutes -
Statute whether mandatory or directory -
Use of "Shall" and "may" [(Civil P.C.
(1908) Pre] -(Words and Phrases) -
Constitution of India, pre].
The use of the word "shall" in a
statute, does not necessarily taken in a
mandatory sense, does not necessarily
mean that in every case it shall have
that effect that is to say, that unless the
words of the statute are punctiliously
followed, the proceeding or the outcome
of the proceeding, would be invalid. On
the other hand, it is not always correct
to say that where the word "may" has
been used, the statute is only permissible
or directory in the sense that non-
compliance with those provisions will not
render the proceeding invalid (1917) AC
170 : AIR 1945 FC 67 rel. on.
(11) An examination of the terms of
Article 320 shows that the word "shall"
appears in almost every paragraph and
every clause or sub-clauses of that
article. If it were held that the provisions
of Article 320(3)(c) are mandatory in
terms, the other clauses or sub-clauses of
that article, will have to be equally held
to be mandatory.
If they are so held, any
appointments made to the public services
of the Union or a State, without
observing strictly, the terms of these sub-
clauses in Clause (3) of Article 320,
would adversely affect the person so
appointed to a public service, without
any fault on his part and without his
having any say in the matter.
This result could not have been
contemplated by the makers of the
Constitution. Hence, the use of the word
"shall" in a statute, though generally
taken in a mandatory sense, does not
necessarily mean that in every case it
shall have that effect, that is to say, that
unless the words of the statute are
punctiliously followed, the proceeding or
the outcome of the proceeding, would be
invalid.
On the other hand, it is not always
correct to say that where the word "May"
has been used, the statute is only
permissible or directory in the sense that
non-compliance with these provisions
will not render the proceeding invalid. In
that connection, the following quotation
from Crawford on 'Statutory
Construction' - Article 261 at page 516 is
pertinent:
"The question as to whether a
statute is mandatory or directory
depends upon the intent of the
Legislature and not upon the language in
which the intent is clothed. The meaning
and the intention of the Legislature must
govern, and these are to be ascertained,
not only from the phraseology of the
provision, but also by considering its
nature, its design, and the consequences
which would follow from construing it
the one way or the other..."
(emphasis supplied)
In view of judicial interpretation of the very provision,
the learned counsel appearing for the petitioner seeks to
take support to contend that violation of the statute
would result in vitiation of the impugned order is
unavailable, unacceptable and is to be rejected.
16. The fourth contention of the learned counsel
appearing for the petitioner is with regard to violation of
the mandate of completion of proceedings within 60
days from its initiation. It is not in dispute that the
entire globe is engulfed by the Pandemic COVID-19 and
cannot be said that the Deputy Commissioner of
Tumkuru was free from such a problem. Original
records that are produced would indicate that
proceedings commenced on 21.04.2021 and ended with
the passing of the impugned order on 26-07-2021. The
dates of proceedings as found in the original records are
as follows:
26-05-2021 PÉÆëqï- 19 »£À߯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß
¢£ÁAPÀ 09-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ.
DzÉñÀzÀ ªÉÄÃgÉUÉ
09-06-2021 PÉÆëqï- 19 »£À߯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß
¢£ÁAPÀ 16-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ.
DzÉñÀzÀ ªÉÄÃgÉUÉ
16-06-2021 PÉÆëqï- 19 »£À߯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß
¢£ÁAPÀ 30-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ.
DzÉñÀzÀ ªÉÄÃgÉUÉ
30-06-2021 ¥Àæ.PÀÆ. Pet ¥ÀgÀ °TvÀ ªÁzÀ ¸À°è¹zÀgÀÆ
JzÀÄgÀÄzÁgÀgÀ ¥ÀgÀ £ÁåAiÀĪÁ¢UÀ¼ÀÄ °TvÀ
vÀPÀgÁgÀÄ ¸À°è¹zÀgÀÄ. Pet ¥ÀgÀ zÁR¯Áw
¸À°è¹zÀgÀÆ G.¥À.¥ÀgÀ £ÁåAiÀĪÁ¢UÀ¼ÀÄ
Short time PÉýzÀÝjAzÀ Act Provi w½¹
£ÀAvÀgÀ M¦à¹. 14-07-2021PÉÌ CAwªÀÄ
«ZÁgÀuÉUÉ ªÀÄÄAzÀÆrvÀÄ.
14-07-2021 ¦ÃoÁ¢üPÁjUÀ¼ÀÄ C£Àå vÀÄvÀÄð PÁAiÀÄðzÀ
¤«ÄvÀÛ ¥ÀæPÀgÀtªÀ£ÀÄß ¢£ÁAPÀ 16-07-2021PÉÌ
ªÀÄÄAzÀÆrzÉ.
16-07-2021 ¥Àæ.PÀÆ. G.¥À. ¥ÀgÀ £ÁåAiÀĪÁ¢UÀ¼ÀÄ ºÁdgÀÄ
ªÁzÀ - «ªÁzÀ PÉüÀ¯Á¬ÄvÀÄ. ¥ÀæPÀgÀtzÀ°è
¸ÀªÀÄAiÀÄ ¤ÃrgÀĪÀÅzÀjAzÀ ¥ÀæPÀgÀtªÀ£ÀÄß
DzÉñÀPÉÌ EqÀ¯Á¬ÄvÀÄ. JzÀÄgÀÄzÁgÀgÀ ¥ÀgÀ
£ÁåAiÀĪÁ¢UÀ¼ÀÄ Written Argument
¸À°è¹zÀgÉ Serving otherside.
26-07-2021 ¥Àæ.PÀÆ. JzÀÄgÀÄzÁgÀgÁzÀ ²æêÀÄw ¨sÁUÀåªÀÄä
f.J£ï. PÉÆÃA. UÀuÉÃ±ï ¹. 9£Éà ªÁqïð
¸ÀzÀ¸ÀågÀÄ PÉÆgÀlUÉgÉ ¥À.¸ÀA. EªÀgÀ£ÀÄß
PÉÆgÀlUÉgÉ ¥À.¸ÀA.¸ÀzÀ¸ÀågÁVgÀ®Ä
C£ÀºÀðUÉƽ¹ DzÉò¹zÉ.
In terms of the aforesaid dates of proceedings, on three
days i.e., on 26-05-2021, 09-06-2021 and 16-06-2021
the proceedings were adjourned due to surge in cases of
COVID-19 in the District and the Deputy Commissioner
being in-charge of the activities concerning testing and
controlling of COVID-19 cases was completely engaged
in such activities. The statutory limitation obtained in
several enactments itself was extended by a general
order of the Hon'ble Apex Court and this Court, on
several occasions, owing to Pandemic of COVID-19.
Therefore, the mandate with regard to limitation cannot
be pressed into service, in the case at hand, as statutory
exception with regard to limitation was prevalent even
where enactments mandated such limitation. Therefore,
the said contention also deserves to be rejected in the
peculiar facts and timing of the case.
17. The fifth contention is with regard to lack of
opportunity to the petitioner at the hands of the
Competent Authority in the proceedings. Again on a
perusal of the proceedings it becomes clear that the
petitioner did not seek to lead evidence or contend that
an opportunity of proving her case otherwise should be
granted. What could be gathered from the proceedings
is that the petitioner herself opted to file written
arguments. Both the parties to the case before the
Deputy Commissioner filed their respective written
arguments and based on such consideration, the
Deputy Commissioner decided the issue. Even in the
written arguments filed, there was no mention about
any opportunity to be granted to the petitioner to lead
evidence. Adequate opportunity is seen to have been
granted in the proceedings. Even if it is construed that
these proceedings are quasi judicial in nature, the Rules
of Procedure having not been drawn up, compliance
with principles of natural justice and grant of
reasonable opportunity is the procedure that is to be
followed. If the contention of the learned counsel for the
petitioner is to be accepted, it would amount to
expanding natural justice to an unlimited extent, as
natural justice cannot be applied in isolation by Courts
of law keeping the facts in cold storage. In the facts of
this case, I find that the petitioner had adequate
opportunity to defend herself before the Deputy
Commissioner. Therefore, this contention of the learned
counsel for the petitioner also deserves to be rejected.
18. It is now germane to notice the contention of
the 6th respondent who has produced certain
photographs of the husband of the petitioner being in
active acquaintance with the leaders of opposite party
viz., Indian National Congress. The learned counsel for
the petitioner submits that the husband of the
petitioner is an independent entity and it is not a matter
to which party he belongs to as long as the petitioner
has not violated any rule or norm of the party. It is now
becomes apposite to consider the submission of the
learned counsel for the petitioner in the light of the
aforesaid submission.
19. The learned counsel for the petitioner submits
that though the petitioner was unwell and was on a
treatment did visit the spot, sat outside the meeting hall
where the elections were to be held on 5-11-2020, did
not go into the meeting hall and after coming to know
the result left the place. If the contention of the
petitioner is tested on the sickness that the petitioner
takes recourse to, it gets diluted, as even according to
the learned counsel for the petitioner, the petitioner did
go to the spot of the meeting but did not get in.
20. Though the husband of the petitioner is free to
choose his party, the link in the chain of events that are
narrated in the course of this order and the sickness of
the petitioner, would lead to an unmistakable
conclusion that it was a deliberate act on the part of the
petitioner to have remained out and violated the whip.
It hardly matters in the facts of this case whether there
was any contestant for the post of President or Vice-
President and only contestants had been elected
unanimously. It is the act of the petitioner sitting on the
fence dilly-dallying with regard to the entry or remaining
outside that deserves acceptance with regard to the
contention of the learned counsel appearing for the 6th
respondent to know the intention of the husband of the
petitioner to be with the Indian National Congress.
21. It is apposite to refer to the judgment of this
Court in the case of H.S.DEVRAJ (supra) wherein a
learned single Judge of this Court has held as follows:
"That brings me to the alternative
submission of Sri Subbaiah. It was contended
that since the selection and nomination of the
candidates had not taken place in the
meeting held on 12th of December 1998 and
14th of December 1998, no whip could have
been issued to support their candidature.
There is, in my opinion, no merit in that
submission either. The decision in the meeting
held on 12th of December 1998 was two fold.
Firstly to leave the nomination of the
candidates to Sri Siddaramaiah and secondly
to call the members of the Zilla Panchayat
belonging to the party on 14th of December
1998 to receive the party directive. It is not
the case of the petitioners that the direction
issued on 14th of December 1998 under the
signatures of the District party President did
not identify the party nominees in whose
favour the Zilla Panchayat members were
asked to vote. A whip from the party or the
person authorised is sufficient to establish
that the person in whose favour the same is
issued has been selected by the party as its
candidate. That being so, a member of the
Panchayat belonging to any such party would
have no option, but to abide by the directive
issued to him. He cannot defy the directive on
the ground that the person nominated as the
official candidate did not either deserve to be
nominated or had not been validly selected.
The very purpose of issuing a whip to the
members of the Panchayat, Municipal Council
or Corporation would be defeated if the
efficacy of any such directive were to depend
upon the person receiving the whip agreeing
with the nomination of the candidate in
whose favour the same is issued. As to how a
candidate is nominated by the party to
contest an election for any Office is an intra
party matter. Different parties may have
different methods and mechanisms for
selection and nomination of their candidates.
Any such nomination or selection process is
not regulated by the Statute. What is crucial
is whether the election process has
eventually culminated in the issue of a
whip by or under the authority of the
party concerned. If it has, all those to
whom the whip is issued can defy the
same only on the peril of loosing their
membership. The fact that Sri Siddaramaiah
did not made any formal declaration of the
official candidates is therefore wholly
inconsequential so long as the party had
authorised the District President to issue the
whip and the person authorised had
identified the candidates, in whose favour the
whip was issued. It is in that view
unnecessary to go into the question whether
the proceedings said to have been recorded
on 12th of December 1998 present a faithful
account of whatever transpired in that
meeting. The issue of the whip, its service
upon the petitioners and the violation thereof
by them having been established, the Election
Commissioner was justified in directing their
disqualification. I see no error of law or
jurisdiction or other procedural impropriety in
the order made by the Election Commissioner
to warrant interference.
(emphasis supplied)
This Court in the aforesaid judgment has clearly held
that if a situation is created by all of those against
whom whip is issued, defy the same, it would be at their
peril. This Court, later, in the case of IREPPA
THIRAKAPPA SHOURADHA (supra) has held as follows:
"2. The impugned order is attacked on
the ground that there is no specific direction
in the whip issued as required under Section
3(1)(b) of the Karnataka Local Authorities
(Prohibition of Defection) Act, 1987.
Consequently, there is no whip in the eye of
law. In the absence of a valid whip, the
impugned order is bad in law. The decisions
in Viswanath Kappathanavar v. Channu
Patil [2000 (3) Kar. L.J. 56 : ILR 2000 KAR
1646 : AIR 2000 Kant. 247.]
and Shobha v. State Election
Commission [2003 (3) KCCR Sh. N. 205.] , are
pressed into service.
3. The ground of attack is wholly
untenable. The whip clearly states "I do
hereby issue this whip of no confidence
motion of Sri R.G. Sindhanur, our party
nominee for the President/Vice-President,
T.M.C., Savanur Taluk
Panchayat/CMC/Town Zilla Panchayat,
Savanur in the forthcoming Elections.
4. If you go against the whip issued by
the prescribed authority or if you avoid to
receive the whip, action will be taken against
you under the provisions of the Karnataka
Local Authorities (Prohibition of Defection) Act
of 1987 and subsequent Amendments in
1995". In view of this clear whip, it cannot be
said that there is no specific direction in the
whip. Therefore, the decisions pressed into
service will not support the case of the
petitioners and the ground urged is rejected.
5. The case sought to be made out
before the 2nd respondent was that the
petitioners do not know English. The 2nd
respondent held that no evidence or proof is
produced in this regard. But, this Court
cannot believe or accept that petitioners do
not know English. The reason is, they have
signed the Vakalathnama in English. Even
the Affidavit verifying the writ petitions is
signed in English by the 2nd petitioner. Even
assuming that petitioners do not know
English, being elected members of the Town
Municipal Council, they cannot plead such
innocence about the language. When a person
receives a document in a language not known
to him, certainly he will ascertain and know
the contents of the document from a person
knowing the language contained in the
document. Therefore, pleading such
unwanted or technical defects will not come to
the rescue of the petitioners.
6. Since the petitioners have disobeyed
the whip, rightly the 2nd respondent has
disqualified their membership. Hence, the
petitioners cannot have any grievance. They
have to blame themselves for their conduct for
having not honoured the whip issued by the
President of the party to which they belong to.
7. The first respondent after giving
reasonable opportunity to the petitioners and
perusing the undisputed material evidence
placed on record has recorded the finding of
fact holding that the petitioners have
disobeyed the whip after rightly rejecting their
plea, which finding of fact cannot be annulled
by this Court in exercise of its power, as this
Court is accepting the same as the same is
based on material facts and evidence on
record. For the foregoing reasons the legal
contentions urged by the learned Senior
Counsel with reference to the cases referred
to supra relied upon by him are wholly
untenable in law and they do not render any
assistance to the case of the petitioners,
hence they are misplaced and cannot be
accepted by this Court.
In the light of the judgments of this Court, quoted
hereinabove, it would lead to an inescapable conclusion
that the petitioner having violated the whip has
exercised such discretion at her peril.
22. Insofar as the judgment relied on by the
learned counsel appearing for the petitioner in the case
of SMT.KITTUR YASMIN RIYAZ (supra), is
distinguishable without much ado. The facts obtaining
in the case of SMT.KITTUR YASMIN RIYAZ (supra) was
that the Court was considering a complaint filed by an
individual and did hold that the complaint at the hands
of the individual was not maintainable and any order
passed on a complaint that was not maintainable was
void. In the case at hand, the complaint is by the 6th
respondent who is the District President of the political
party to which the petitioner belongs. Therefore, the
said judgment is inapplicable to the facts of the case.
23. Insofar as the judgment in the case of RAVI
S.NAIK (supra), the learned counsel places reliance on
this judgment to buttress his submission with regard to
violation of principles of natural justice. This again, in
my considered view, is inapplicable to the facts of the
case at hand for the reason as assigned while answering
the fifth contention of the petitioner.
24. Insofar as it concerns the judgment in the case
of SADASHIV H.PATIL (supra) the issue before the Apex
Court was whether the resolution could be equated to a
whip as there was no resolution of the Aghadi
authorizing the signatories of the whip to issue the
whip. The case at hand is not the one where the whip
was issued pursuant to any resolution. The whip is
issued by the District President of a political party.
Therefore, the judgments relied on by the learned
counsel appearing for the petitioner are all inapplicable
to the peculiar facts of the case at hand.
25. Therefore, for the aforesaid reasons, it can
safely be concluded that the petitioner has violated the
whip and invited the impugned order. Violation alleged
in terms of Section 4 with regard to 24 hours as held by
this Court is directory and not mandatory and with
regard to completion of proceedings within 60 days as
mandated under Section 4(2) of the Act, it is held to be
unavailable on the ground of prevailing circumstances
of COVID-19 and the reasons indicated hereinbefore
and the plea with regard to violation of principles of
natural justice also deserves to be rejected on the plain
perusal of written arguments, the petition and the
original records maintained in the case at hand.
26. In the result, the writ petition lacks merit and
is dismissed.
Sd/-
JUDGE
bkp
CT:MJ
