Karnataka High Court
Sri. Mohammed Shafeeq vs Deputy Commissioner And District ... on 8 August, 2022
Bench: Acting Chief Justice, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. NO.627 OF 2022 (LB-RES)
IN
W.P. NO.10298 OF 2022 (LB-RES)
BETWEEN:
SRI. MOHAMMED SHAFEEQ
SON OF SRI. ABDUL JALEEL
AGED ABOUT 36 YEARS
RESIDING AT NO.214, 3RD CROSS
SRINIVASAPURA ROAD
SONNASHETTYHALLI
CHIKKABALLAPURA DISTRICT
CHINTAMANI-563 125.
... APPELLANT
(BY MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
MR. ROHAN HOSMATH, ADV.,)
AND:
1. DEPUTY COMMISSIONER AND DISTRICT
ELECTION OFFICER
CHIKKABALLAPURA
DISTRICT OFFICES COMPLEX
SIDLAGHATTA ROAD
CHIKBALLAPUR-562 101.
2
2. SRI. K.M. MUNEGOWDA
SON OF LATE MUNIVENKATAPPA
AGED MAJOR
DISTRICT PRESIDENT
JANADA DAL (S)
OPPOSITE TO IOCL PETROL BUNK
B.B. ROAD, CHIKKABALLAPURA-562 101.
3. CHIEF OFFICER
CHINTAMANI MUNICIPAL COUNCIL
BANGALORE ROAD, WARD NO.10
N.R. LAYOUT
CHIKKABALLAPURA DISTRICT
CHINTAMANI-562 160.
4. KARNATAKA STATE ELECTION COMMISSION
KSCMF BUILDING
NO.8, 1ST FLOOR, CUNNINGHAM ROAD
VASANTH NAGAR, BENGALURU-560 052
REP. BY ITS COMMISSIONER.
... RESPONDENTS
(BY MRS. C.S. RADHA JAYANTI, ADV., FOR C/R2
MRS. VANI H, AGA FOR R1
MR. KARTIK GANACHARI, ADV., FOR
MRS. VAISHALI HEGDE, ADV., FOR R4)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET-ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE IN WP
NO.10298/2022 DATED 30/06/2022 AND CONSEQUENTLY
ALLOW THE WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR ORDERS, THIS
DAY, ACTING CHIEF JUSTICE DELIVERED THE
FOLLOWING:
3
JUDGMENT
This intra court appeal under Section 4 of the
Karnataka High Court Act, 1961 has been filed
against an order dated 30.06.2022 passed by the
learned single Judge by which writ petition preferred
by the appellant has been dismissed.
2. Facts giving rise to filing of this appeal
briefly stated are that the appellant was elected as
Councilor from Ward No.18 of City Municipal Council,
Chintamani (CMC). The appellant was sponsored by
Karnataka Pradesh Janata Dal (Secular) Party. On
22.10.2020, elections for the post of President and
Vice President were notified and were scheduled to be
held on 01.11.2022. The President of the Party viz.,
Sri.H.K.Kumaraswamy issued a whip on 29.10.2020.
In the said election, it is alleged that the appellant
violated the aforesaid whip and voted in favour of the
candidates belonging to Bharatiya Praja Party.
3. The District President of Janata Dal
(Secular) Party submitted a complaint on 03.11.2020
to the Commissioner, CMC. On 18.11.2020, another
complaint was filed by Sri.H.K.Kumaraswamy,
President of Janata Dal (Secular) Party. However, the
notice of first complaint filed by District President was
issued to the appellant. The appellant thereupon filed
objections to the complaint.
4. The Deputy Commissioner passed an order
on 22.04.2022 under Section 4 of the Karnataka Local
Authorities (Prohibition of Defection) Act, 1987
(hereinafter referred to as 'the Act' for short)
disqualifying the appellant. The appellant challenged
the aforesaid order in a writ petition. The said writ
petition was dismissed by an order dated 30.06.2022.
In the aforesaid factual background, this appeal has
been filed.
5. Learned Senior counsel for the appellant
submitted that learned single Judge ought to have
appreciated that there was no authorization in favour
of District President to file a complaint against the
appellant and therefore, the aforesaid complaint could
not have been entertained by the District President. It
is also submitted that the decision of this court in
'MAKANDAR ZAKIR HUSSAIN ABDULBIN VS.
DEPUTY COMMISSIONER', 2011 SCC ONLINE KAR
4530 has no application to the facts and
circumstances of the case as in the aforesaid case, a
resolution was passed authorizing the District
President to file a complaint. Learned Senior counsel
has further submitted that the order of
disqualification has the effect of unseating a person
from an elected office and therefore, rigorous
compliance with the provisions of the Act and the Rule
must be shown. It is also pointed out that complaint
made by the State President of Janata Dal (Secular)
Party is still pending and therefore, a direction may be
issued to the Deputy Commissioner to decide the
same. In support of aforesaid submission, reliance
has been placed on decision of Supreme Court in
SADASHIV H. PATIL VS. VITHAL D. TEKE AND
OTHERS', (2000) 8 SCC 82.
6. On the other hand, learned counsel for
respondent has submitted that the issue involved in
this appeal is squarely covered by a division bench
decision of this court in MAKANDAR ZAKIR HUSSAIN
ABDULBIN supra and the appellant has indulged in
an act which is prohibited by law and therefore, he
should not be given the benefit on technical grounds
or procedural irregularities.
7. We have considered the submissions made
on both sides and have perused the record. The
relevant extract of Section 4 of the Act reads as under:
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 1[(d) x x x ]1
Thus from perusal of the aforesaid provision, it is
evident that a complaint can be filed by a Councilor,
or a member or by a political party. In the instant
case, respondent No.2 was not authorized on behalf of
the political party to file a complaint against the
appellant. The said conclusion can also be gathered
from the fact that subsequently the president of the
party himself filed a complaint against the appellant
on 18.11.2020. The complaint filed against the
appellant could be entertained provided the same was
filed by an authorized person. It is trite law that when
the statute provides a mode of doing an act in a
particular manner, the action has to be taken in
accordance with the provisions of the Act only. The
sine qua non for entertaining the complaint is that the
same has to be presented by an authorized person.
Therefore, the Deputy Commissioner could not have
passed the order of disqualification dated 22.04.2022.
So far as reliance placed by learned counsel for
respondent on division bench decision of this court in
MAKANDAR ZAKIR HUSSAIN ABDULBIN is
concerned, suffice it to say that in the said decision,
the District President was authorized to file the
compliant. Therefore, the aforesaid decision has no
application to the facts of this case.
8. For the aforementioned reasons, the
impugned order of disqualification dated 22.04.2022
is hereby quashed. Admittedly, the complaint filed by
the State President on 18.11.2020 against the
appellant is pending. The Deputy Commissioner is
therefore, directed to decide the aforesaid complaint
after affording an opportunity of hearing to the
appellant and to the complainant and to deal with the
complaint expeditiously in accordance with law within
one month from today. To the aforesaid extent, the
order passed by the learned single Judge is modified.
In the result, the appeal is disposed of.
Sd/-
ACTING CHIEF JUSTICE
Sd/-
JUDGE
SS
