Smt Pavithra vs The Deputy Commissioner
2021 Latest Caselaw 3407 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF SEPTEMBER, 2021   R
                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.17093 OF 2021 (LB-ELE)

BETWEEN

1.   SMT.PAVITHRA
     W/O RAMESHA K.,
     AGED ABOUT 28 YEARS
     WARD NO.13, MUNICIPAL COUNCILLOR
     C.M.C., KOLLEGAL, R/O NO.11/177
     KODI BEEDHI, KOLLEGAL
     CHAMARAJNAGAR DISTRICT - 571 440.

2.   SMT.L.NAGAMANI
     W/O B.GOPAL
     AGED ABOUT 36 YEARS
     WARD NO.2, MUNICIPAL COUNCILLOR
     C.M.C. KOLLEGAL, R/O NO.1/175,
     ANAND JYOTHI COLONY, KOLLEGAL,
     CHAMARAJNAGAR DISTRICT - 571 440.

3.   SMT.GANGAMMA
     W/O VARADARAJU M.,
     AGED ABOUT 30 YEARS
     WARD NO.6, MUNICIPAL COUNCILLOR
     C.M.C. KOLLEGAL, R/O NO.1/257
     BASAVANAGUDI BEEDHI, KOLLEGAL
     CHAMARAJNAGAR DISTRICT - 571 440.

4.   SRI NASEER SHARIFF
     S/O GAFAR SHARIFF
     AGED ABOUT 45 YEARS
     WARD NO.7, MUNICIPAL COUNCILLOR
                            2



      C.M.C. KOLLEGAL, R/O NO.1/257
      SAMANDAGERI BEEDHI KOLLEGAL
      CHAMARAJNAGAR DISTRICT - 571 440.

5.    SRI PRAKASH
      S/O PUTTAMADAIAH
      AGED ABOUT 35 YEARS
      WARD NO.21, MUNICIPAL COUNCILLOR
      C.M.C KOLLEGAL, R/O NO.195
      SHANKANAPURA, KOLLEGAL
      CHAMARAJNAGAR DISTRICT - 571 440.

6.    SRI RAMAKRISHNA N.,
      S/O NANJAIAH
      AGED ABOUT 49 YEARS
      WARD NO.25, MUNICIPAL COUNCILLOR
      C.M.C. KOLLEGAL, R/O NO.7/332
      R.M.C ROAD, KOLLEGAL
      CHAMARAJNAGAR DISTRICT - 571 440.

7.    SMT.NAGASUNDARAMMA
      W/O JAGADISH S.,
      AGED ABOUT 35 YEARS
      WARD NO.26, MUNICIPAL COUNCILLOR
      C.M.C. KOLLEGAL, R/O NO.14/191-A
      SHANKANAPURA KOLLEGAL
      CHAMARAJNAGAR DISTRICT - 571 440.
                                              ... PETITIONERS

(BY SRI JAYAKUMAR S.PATIL, SR. ADVOCATE A/W
    SRI MAHAMMED TAHIR A., ADVOCATE
    (VIDEO CONFERENCING))

AND

1.    THE DEPUTY COMMISSIONER/
      DISTRICT ELECTION OFFICER
      CHAMARAJNAGAR
      CHAMARAJNAGAR DISTRICT - 571 440.
                                 3



2.    SMT. JAYAMARI G.,
      W/O SYED SAIFULLA
      AGED ABOUT 50 YEARS
      WARD NO.22, MUNICIPAL COUNCILLOR
      C.M.C. KOLLEGAL, R/O NO.76/491
      NOOR MOHALLA, KOLLEGAL
      CHAMARAJANAGAR DISTRICT - 571 440.
                                                 ... RESPONDENTS

(BY SRI NITHYANANDA K.R., HCGP FOR R1 (PHYSICAL HEARING)
    SRI A.S.PONNANNNA, SR. ADVOCATE FOR
    SRI S.B.SURESH, ADVOCATE FOR C/R2
   (VIDEO CONFERENCING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
ENTIRE RECORDS IN CASE FROM THE DEPUTY COMMISSIONER,
MYSORE (R2); QUASH THE ORDER DATED 06.09.2021 IN CASE
PASSED BY THE R1 AT ANNEXURE-A.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                              ORDER

The petitioners claiming to be aggrieved by the order dated

6.09.2021 passed by the 1st respondent/Deputy Commissioner

disqualifying the petitioners from the membership of the City

Municipal Council, Kollegal have filed the subject writ petition.

2. Sans details, facts in brief that are germane for

consideration of the lis are as follows:-

The petitioners, residents of Kollegal Taluk,

Chamarajnagar District were elected as councilors to Kollegal

City Municipal Council ('CMC' for short) in the elections held in

2018 from Bahujan Samaj Party ('BSP' for short). The elections

were held on 31-08-2018 and results were declared on

3-09-2018. Elections to the office of President and Vice-

President had not been conducted for over two years of

constitution of the Council. The constitution of the Council had

happened on 6-09-2018. A notification notifying elections to the

office of the President and the Vice-President to CMC was issued

on 22-10-2020. This was presided by a notification dated

8-10-2020 depicting reservation to be followed for the election of

the President and the Vice-President of all urban local bodies

including the CMC.

3. When the elections to the President and the Vice-

President were notified, the Block President of the BSP national

party sent notices to the petitioners on 22-10-2010 to attend the

meeting of the party to be held at 5 p.m. on 24-10-2020. On

24-10-2010 it is the claim of the 2nd respondent that they

remained deliberately absent. The office of President of CMC was

reserved for General (Woman) and the office of Vice-President

was reserved for Scheduled Tribe (Woman). In the meeting held

on 24-10-2020 it was also decided to issue directions/whip to all

the BSP national party councilors of the CMC directing them to

compulsorily attend the election to the offices of President and

Vice-President of the CMC and to vote in favour of the mandate

of the whip. The final meeting of the party was also held on

28-10-2020. The State unit of the BSP authorized one

Sri N.Nagaiah, President of Chamarajnagar District BSP National

Party to issue whip on behalf of BSP national party to be served

on all the BSP national party councilors directing them to attend

the meeting of the election without fail.

4. On 29-10-2020 elections were held and it transpires, as

alleged, that the petitioners voted in favour of one

Smt. Gangamma, rebel BSP national party candidate who

consequently secured 17 votes and was declared elected as

President of the CMC. The 2nd respondent/official BSP national

party candidate secured only 2 votes in view of petitioners voting

in favour of the rebel candidate. On such action of the

petitioners, a complaint was filed by the 2nd respondent who

was a contestant to the office of President from the BSP national

party seeking disqualification of the petitioners. The Deputy

Commissioner, after hearing the parties, allowed the complaint

and disqualified the petitioners from the membership of the

Council on the ground that they had violated the direction and

had defected from the party. It is this order of the Deputy

Commissioner that is called in question in the writ petition.

5. Heard the learned Senior Counsel Sri Jayakumar S.Patil

appearing for the petitioners, learned Senior Counsel

Sri A.S. Ponnanna appearing for the 2nd respondent and the

learned High Court Government Pleader Sri K.R. Nithyananda

appearing for the 1st respondent/ Deputy Commissioner.

6. The learned Senior Counsel appearing for the petitioners

would vehemently argue and raise the following contentions viz.,

that the whip issued was without authority of law; that the whip

so issued was never served upon the petitioners; that the order of

the Deputy Commissioner does not bear consideration to any of

the facts obtaining in the case at hand and it is bereft of reasons.

7. On the other hand, the learned Senior Counsel

Sri A.S.Ponanna would refute the submissions and urge the

following contentions viz., that the petitioners have resigned from

the primary membership of the party way back on 29-02-2020

and having resigned nothing more need be examined in this

petition; the admitted facts are that the petitioners have acted

against the interest of the party and have defected and formed a

splinter group which is also admitted; that with this admission, it

is ununderstandable how the contentions of the kind that are

advanced could ever be advanced are his emphatic submissions.

8. The learned High Court Government Pleader while

placing original records for the perusal of the Court has also

contended that the order of the Deputy Commissioner does not

call for any interference as the petitioners had admittedly

resigned from the primary membership of the party.

9. In reply, the learned Senior Counsel for the petitioners

would submit that whether the petitioners have resigned or not,

what is to be looked into is whether the mandate of the statute

has been followed in disqualifying the petitioners from the

members of the Council. He therefore submits that, there is

complete failure of Sections 3 and 4 of the Karnataka Local

Authorities (Prohibition of Defection) Act, 1987 ('the Act' for

short).

10. I have given my anxious consideration to the respective

submissions and perused the material on record including the

original records placed by the learned High Court Government

Pleader.

11. The subject lis arises out of an application/complaint

being filed by the 2nd respondent invoking Section 4(1)(b) of the

Act seeking disqualification of the petitioners under Section 3 of

the Act. Therefore, it is germane to notice Section 3 of the Act

which reads as follows:

          "3. Disqualification      on    the    ground       of
     defection, -

(1)Subject to the provisions of Sections 3A, 3B and 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, or intentionally remains absent from any meeting of the Municipal Corporation, Municipal 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 authorised 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.

Explanation:For the purpose of this sub-

section-

(a) a person elected as a Councillor, or as the case may be, a member, shall be deemed to belong to the political party, if any, by which he was set up as a Candidate for election as such Councillor or Member.

(b) a person elected as a Councillor or as the case may be, a member, otherwise than as a candidate set up by a political party shall be deemed

to belong to the political party of which he becomes a member before the expiry of six months from the date of commencement of this term of office, or in the case of a Councillor or Member whose terms of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995 within six months from such date.

(2) An elected Councillor, as the case may be, a member, who has been elected as such, otherwise than as a candidate set up by a political party shall be disqualified for being a Councillor or, as the case may be a member if he joins a political party after expiry of six months from the date of commencement of his term of office, or in the case of a Councillor of Member whose term of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995, after expiry of six months from such date.

(3) omitted.

4. Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a Councillor shall-

(a) Where he was a member of a political party immediately before such commencement, be deemed for purposes of sub-section (1) to have been elected as a Councillor as a candidate set up by such political party.

(b) In any other case, be deemed to be an elected Councillor who has been elected as such otherwise than as a candidate set up any political party for the purpose of sub-section (2)."

(Emphasis supplied)

It is on the bedrock of the provision, the facts are necessary to

be considered.

12. The facts narrated hereinabove are not in dispute. The

petitioners who are elected members of the Council had long

before the elections to the office of President and Vice-President

resigned from the primary membership of the party. The

original records produced bear letters of resignation of the

petitioners. If these letters of resignation had been disputed, it

would have been a circumstance altogether different. The

submission of letters of resignation is not disputed. On the

other hand, they are confirmed with emphasis.

13. In a proceeding instituted by the 2nd respondent before

the Deputy Commissioner invoking Section 4 of the Act seeking

disqualification of the petitioners on the ground that they have

defected and have voted against the interest of the party, the

very petitioners filed their objections. In the objections, the

contentions taken up becomes nucleus of the lis. The objections

were filed by the petitioners in which a contention is taken up

with regard to maintainability of the complaint itself. It is the

contention of the petitioners that the 2nd respondent has not

challenged the validity of resignation letters which the

complainant has chosen to produce as Annexure-19. It is their

contention that, if they have voluntarily given up their

membership, then the complaint is not maintainable as it falls in

the exceptions carved out in terms of Section 3A of the Act. The

averment in the objections of the petitioners with regard to

justification of non-maintainability of the complaint reads as

follows:

"Re: Maintainability:

7. The complainant has presented this complaint purportedly under Section 4(1)(a) and (b) of the Karnataka Local Authorities Prohibition of Defection) Act, 1987 (the "Act")

8. It is submitted that Section 4 of the Act, there are three distinct situations contemplated for filing of the complaint. Each type of complaint is based on a distinct type of event with distinct cause of action prescribing the time period for lodging such complaint. If the case falls under clause (a) of sub-section (1), the complaint has to be filed after the member or the councilor gives up the membership of the political party; and if the case

falls under (b) then it is to be filed after the expiry of fifteen days specified therein.

9. The complainant has alleged both events contemplated both under clause (a) of sub- section (1) and clause (b) therein. Hence, a single complaint is not maintainable on two causes of action.

10. More importantly, the complainant has not challenged the validity of the resignation letters which the complainant has chosen to produce as Annexure No.19, which have attained finality. Hence, the present complaint is not maintainable. Hence, the same is liable to be dismissed.

11. If according to the complainant the respondents have voluntarily given up their membership vide Annexure-19 (paragraphs 12 and 13), then too the complaint is not maintainable as it falls under the exceptions carved out under Section 3A of the Act. Hence, by complainant's own admission, the complaint is not maintainable ether in facts or in law.

12. The complainant denies that one M.Krishna Murthy claiming to be the State President has written a letter dated 12March, 2020 to this Hon'ble Authority alleging the same set of events that are alleged herein. Even presuming without admitting, the same complaint has been rejected even according to the complainant. Admittedly, the same was not challenged and was allowed to attain finality. Hence, one more complaint,

based on the same cause of action cannot be maintained before the same authority.

13. Alternatively, and without prejudice, it is submitted that even if according to the complaint if Karnataka State Unit President of Bahujan Samaj Party has now reconciled to the fact of resignations of the respondents, a member of the same political party cannot maintain another complaint alleging the same facts. In other words, what is binding on the Party President is binding on the Member.

14. Even according to the complainant if the resignation letters are admitted fact since 12thMarch, 2020. The complainant having accepted it almost for about a year now, cannot challenge the same in the present proceedings. The complaint is hopelessly belated. Hence, the same is liable to rejected."

(Emphasis added)

It is further contended that even according to the complaint if

the Karnataka State Unit President of BSP has now reconciled to

the fact of resignation of the petitioners, a member of the same

political party cannot maintain the complaint alleging the same

fact, as even according to the complainant resignation letters

were admitted since 12-03-2020 and the complainant having

accepted the knowledge of the said resignations for over a year,

cannot challenge the same in the present proceedings.

14. With these contentions in the objections filed to the

complaint, what is needed to be considered is, whether the

petitioners are entitled to challenge the disqualification on any

other ground in the teeth of submission of their resignations and

unequivocal justification of such submission?

15. In legal parlance resignation means a spontaneous

relinquishment of one's own right in relation to any office. It

connotes an act of giving up or relinquishing the office.

Generally, resignation to get its full effect should be

unconditional. The letters of resignation submitted by the

petitioners on the very perusal of them depicts that they were

unconditional. Therefore, once having relinquished their own

right to continue as councilors, it would not lie with the

petitioners to contend that they have to be disqualified in any

other manner as depicted in the Act. The Apex Court in the case

of SRIKANTHA S.M. v. BHARATH EARTH MOVERS LIMITED1 -

delineates what is resignation in legal parlance. Paragraph 12 in

the said judgment reads as follows:

"12. Now, let us consider the controversy on merits. The term "resignation" has not been defined in the Service Rules. According to the dictionary meaning, however, "resignation" means spontaneous relinquishment of one's own right. It is conveyed by the Latin maxim Resignatioest juris propiispontanearefutatio. (Resignation is a spontaneous relinquishment of one's own right.) In relation to an office, resignation connotes the act of giving up or relinquishing the office. "To relinquish an office" means "to cease to hold the office" or "to leave the job" or "to leave the position". "To cease to hold office" or "to lose hold of the office" implies to "detach", "unfasten", "undo" or "untie" "the binding knot or link" which holds one to the office and the obligations and privileges that go with it.

In the light of the judgment of the Apex Court what implies by

the act of resignation is the knocking off the binding knot which

holds one to the office and the obligation and privileges that go

(2005) 8 SCC 314

with it. The petitioners having resigned, cannot now be seen to

contend that they are entitled to protection under the Act insofar

as procedure to be followed for disqualification.

16. Therefore, Section 3(1)(a) of the Act clearly bars

continuation of the petitioners as Members of the Council, as

Section 3(1)(a) mandates that if a councilor has given up his

Membership of such political party, he shall be disqualified on

the ground of defection. Resignation is that voluntary act of the

petitioners which snaps complete ties with the office that they

were holding. Therefore, resignation being such voluntary act

would straightaway be covered under Section 3(1)(a) of the Act

(supra).

17. The shelter of protection that the petitioners seek is

invoking Section 3A of the Act. Section 3A of the Act reads as

follows:-

"3A. Disqualification on ground of defection not to apply in case of split.-Where a councillor or a Member make a claim that he and any other members of his political party constitute the group representing a faction which has arisen as

a result of split in his political party and such group consists of not less than one third of the members of such political party:

(a)he shall not be disqualified under sub-section (1) of Section 3 on the ground-

(i) That he has voluntarily given up his membership of his political party; or

(ii) That he has voted or abstained from voting in, or intentionally remained absent from, any meeting of the Municipal Corporation, Municipal 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 authorised by it in this behalf, without obtaining in any case, the prior permission of such political party, person or authority and such voting or abstention or absence has not been condoned by such political party, person or authority with fifteen days from the date of voting or such abstention or absence; and

(b) from the date of such split, such faction shall be deemed to be the political party to which he belongs for the purpose of sub-section (1) of Section 3 and to be his political party for the purpose of this Section."

(Emphasis supplied)

Section 3A of the Act protects disqualification of a Member in

case of a split in the political party. This protection to the

petitioners is not available and the contention is unacceptable.

Section 2(vi) defines a "political party" and reads as follows:-

"2. Definitions.-

xx xx xx xx

(vi) "Political party" in relation to a councillor or members means a political party recognised by the Election Commission of India as a National party or a State Party in the State of Karnataka under the Election symbols (reservation and Allotment) Order, 1968, and to which he belongs for the purpose of sub-section (1) of Section 3."

(Emphasis supplied)

A political party in relation of a councillor or a Member would

mean a political party recognized by the Election Commission of

India as a National party or a State party in the State of

Karnataka. Therefore, the protection that the petitioners seek

under Section 3A of the Act will have to be considered in terms

of what is a political party.

18. The contention of the petitioners is that 7 out of 9 of

them have resigned and have formed a separate splinter group

within the political party. This contention, I fail to countenance,

for the reason that merely coming out from a political party and

forming a splinter group will not make them a political party.

They should either form a political party and seek recognition or

show that they have joined a political party which is recognized

by the Election Commission of India. It is only then the

petitioners can claim that they are protected under Section 3A of

the Act.

19. The petitioners have tendered their resignation on

29.02.2020; eight months have passed by the time the election

was sought to be conducted to the office of President and Vice-

President of the CMC. The petitioners have not produced even a

tither of evidence to show that their splinter group is a political

party recognised by the Election Commission of India as

obtaining under Section 2(vi) of the Act or have joined any

political party which is already recognized by the Election

Commission of India. It is not that the election has taken place

immediately after their resignation. In fact election has taken

place 8 months after their resignation. Therefore, it is not open

to the petitioners even to contend that they had no time either to

get their splinter group recognised as a separate political party

or join any political party already recognized.

20. Sitting on the fence and taking up such defence is

unavailable to the petitioners. Therefore, the claim of the

petitioners for protection under Section 3A of the Act deserves to

be rejected. It is not in dispute again that the petitioners have

defected from the party and have formed a splinter group. By

this admitted fact, they incur disqualification under Section

3(1)(a) of the Act as they have voluntarily given up their

membership of such political party.

21. In the light of the aforesaid act of the petitioners

resigning from the membership and incurring disqualification

under Section 3(1)(a) of the Act, the fact whether the whip was

issued by the Competent Authority or whip was served upon the

petitioners would not arise and need not be considered as those

contentions would become available for a circumstance under

Section 3(1)(b) of the Act where if a member votes or abstains

from voting or intentionally remains absent.

22. Though contentions and contra contentions have

emerged in the course of submissions with regard to whip being

served or meeting notices sent by speed post to the addressees,

all those contentions become superfluous and unnecessary, in

the facts obtaining in the case at hand as the case of the

petitioners come under Section 3(1)(a) of the Act which

disqualifies them.

23. With the admitted facts by the petitioners, in my

considered view, no ground urged with regard to the procedure

to be followed or the order of the Deputy Commissioner bearing

no consideration would arise. Acting against the political party

to which they belong is always a peril to those members of the

political party when acted as such. Contentions of the kind

advanced, in the case at hand, will not show any light in the end

of the tunnel to the petitioners as on their sheer conduct they

are disentitled to consideration of any such contentions with

regard to the procedural aberrations, if any, at the hands of the

Deputy Commissioner in the order impugned. The order

impugned narrates all the circumstances, does consider the

contentions advanced and disqualifies the petitioners on the

grounds indicated, inter alia, on the ground of resignation.

Therefore, I do not find any fault in the order impugned.

24. Insofar as the judgments relied on by the learned

Senior Counsel appearing for the petitioners in the case of

SADASHIV H.PATIL v. VITHAL D.TEKE AND OTHERS - (2000)

8 SCC 82, N.SHIVANNA AND OTHERS v. DEPUTY

CMMISIONERE, CHAMARAJNAGAR AND OTHERS - ILR 2004

KAR.4143 or the judgment of the Co-ordinate Bench in SMT.

SAVITA v. DISTRICT PRESIDENT, BHARATIYA JANATA

PARTY - Writ Petition No.102096 of 2021 decided on 2-08-2021,

they would not be applicable on the peculiar facts of the lis, as

the petitioners, in the case at hand, have already resigned as

councilors incurring disqualification under Section 3(1)(a) of the

Act as they have voluntarily given up their positions.

25. Reference to the judgment of the Apex Court in the

case of RAVI S. NAIK V. UNION OF INDIA2, in the

circumstances is more apposite. The Apex Court in the said case

considering an identical circumstance of voluntarily giving up

membership holds as follows:

"11. This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa Legislative Assembly under the ticket of MGP. They have been disqualified from membership of the Assembly under order of the Speaker dated December 13, 1992 on the ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b) was not pressed on behalf of the contesting respondent and disqualification was sought on the ground of paragraph 2(1)(a) only. The said paragraph provides for disqualification of a member of a House belonging to a political party "if he has voluntarily given up his membership of such political party". The words "voluntarily given up his membership" are not synonymous

1994 Supp (2) SCC 641

with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.

(Emphasis supplied) The Apex court in the case of RAVI S NAIK (supra) holds

that there can be many inferences for voluntarily giving up the

membership even if one has not resigned; the case at hand is

one where the petitioners have all resigned, therefore, no

inference need be drawn, the impugned action is a direct result

of their resignation in terms of the statute. Therefore, none of

the armory from the arsenal of the learned Senior counsel

appearing for the petitioners would lend any support to the

contentions so advanced.

26. For the aforesaid reasons, I do not find any fault with

the order dated 6-09-2021 passed by the Deputy Commissioner

disqualifying the petitioners from the membership of the CMC.

The writ petition being devoid of merit is dismissed.

Sd/-

JUDGE

bkp CT:MJ