Sri. Mohammed Shafeeq vs Deputy Commissioner And District ...
2022 Latest Caselaw 10016 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JUNE, 2022

                        BEFORE

         THE HON'BLE MR. JUSTICE R.NATARAJ

     WRIT PETITION 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, SONNASHETTY HALLI,
CHIKKABALLAPURA DISTRICT ,
CHINTAMANI-563 125.
                                ...PETITIONER
(BY SRI. D.N.NANJUNDA REDDY, SENIOR ADVOCATE A/W
    SRI. ROHAN HOSMATH, ADVOCATE)

AND:

1.     DEPUTY COMMISSIONER AND DISTRICT
       ELECTION OFFICER,
       CHIKKABALLAPURA
       DISTRICT OFFICES COMPLEX,
       SIDLAGHATTA ROAD,
       CHIKBALLAPUR-562 101

2.     SRI. K.M. MUNEGOWDA
       SON OF LATE MUNIVEKATAPPA
       AGED MAJOR,
       DISTRICT PRESIDENT, JANADA DAL(S)
       OPPOSITE TO IOCL PETROL BANK,
       B.B. ROAD, CHIKKABALLAPURA-562 101.

3.     CHIEF OFFICER,
       CHINTAMANI MUNCIPAL COUNCIL
                                 2


       BANGALORE ROAD, WARD NO.10,
       N.R. LAYOUT, CHIKKABALLAPUR DISTRICT
       CHINTAMANI-562 160.

4.     KARNATAKA STATE ELECTION COMMISSION
       KSCMF BUILDING, NO.8, 1ST FLOOR,
       CUNNIGHAM ROAD, VASANTH NAGAR,
       BENGALURU-560052
       REP. BY ITS COMMISSIONER
                                      ...RESPONDENTS

(BY SMT. PRATHIMA HONNAPURA, ADDITIONAL GOVERNMENT
ADVCOATE FOR RESPONDENT NO.1;
SMT. C.S.RADHA JAYANTHI, ADVOCATE FOR CAVEATOR
RESPONDENT NO.2;
SMT. VAISHALI HEGDE, ADVOCATE FOR RESPONDENT NO.4;
NOTICE SERVED ON RESPONDENT NO.3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY RESPONDENT NO.1 DATED
22.04.2022 BEARING No.ELN(2) SR.06/2019-20 (PART-II)
PRODUCED AS ANNEXURE-K.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16.06.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-

                            ORDER

The petitioner, an erstwhile councillor of the

respondent No.3, has filed this writ petition challenging the

order dated 22.04.2022 passed by the respondent No.1 in

case No.ELN(2)SR.06/2019-20, by which he was

disqualified under Section 4 of the Karnataka Local

Authorities (Prohibition of Defection) Act, 1987 (henceforth

referred to as "Act of 1987" for short).

2. The petitioner claims that he was elected as a

Councillor of the respondent No.3 from Ward No.18 of

Keerthinagar at the elections held on 14.11.2019. The

petitioner was sponsored by the Karnataka Pradesha

Janata Dal (Secular) Party. The Councillors of respondent

No.3, who were elected from the various political parties

are as follows:

       Sl.                Party              No. of
       No.                                 Councillors

       2.           Bhartiya Praja Party      14

       4.         Independent candidates       2

3. In terms of a Notification dated 22.10.2020,

the respondent No.1 notified elections to fill the seats of

President and Vice-President of the respondent No.3 on

01.11.2020. The petitioner claims that after the calendar

of events was published, a 'whip notice' was allegedly

issued on 29.10.2020 by Sri. H.K.Kumaraswamy, the State

President of JD(S) Party, directing its members to cast

their vote in favour of Smt. T.V.Manjula (for President) and

Smt.S.Manjula (for Vice-President), who were candidates

of the JD(S) Party.

4. At the election that was conducted on

01.11.2020, the candidates of Bharatiya Praja Party were

declared as the returned candidates for the posts of

President and Vice-President. Later, the respondent No.2

being a District President of JD(S) Party, addressed a

complaint directly to the respondent No.1 on 03.11.2020

alleging that the petitioner had violated the whip issued by

Sri. H.K.Kumaraswamy. The petitioner claims that this

complaint did not refer to any resolution or other

document authorising the respondent No.2 to lodge a

complaint under Section 4 of the Act, 1987. Later on

18.11.2020, Sri. H.K.Kumaraswamy, the State President of

JD(S) lodged a complaint to the Commissioner, City

Municipal Council, Chintamani accusing the petitioner of

violating the whip at the elections held on 01.11.2020 to

fill the seats of President and Vice-President. The petitioner

stated that he was not aware whether the later complaint

dated 18.11.2020 was forwarded to the respondent No.1.

5. However, the respondent No.1 based on the

complaint dated 03.11.2020 lodged by the District

President, issued a notice to the petitioner calling upon

him to show-cause why proceedings under the Act of 1987

should not be initiated. The petitioner entered appearance

through his counsel and contested the case. A request

made by the petitioner for copies of the documents

annexed to the complaint dated 03.11.2020 was allegedly

turned down by the respondent No.2.

6. The petitioner raised the following objections

before the respondent No.1:-

(i) that the complaint dated 03.11.2020 was directly addressed to the respondent No.1, which was in violation of the procedure prescribed under Section 4 of the Act of 1987.

(ii) that the respondent No.2 was not authorised to lodge the complaint and no authorisation was furnished before the respondent No.1.

(iii) the petitioner was not served with the copy of the complaint lodged by the respondent No.2.

(iv) that the 'whip notice' was not served upon the petitioner.

7. He also contended that Sri. H.K.

Kumaraswamy, the State President of JD(S) was not

authorised to issue the whip and therefore the petitioner

could not be accused of defying the 'whip notice'. The

petitioner alleged that the respondent No.1 without

affording any opportunity, reserved the case for orders on

04.01.2022. He contended that neither the respondent

No.3 tendered evidence nor any documents were marked

in enquiry and no opportunity was granted to cross-

examine the complainant/respondent No.2.

8. The petitioner alleged that the respondent

No.1 yielding to the dictate of a member of Legislative

Assembly, Sri. Krishna Reddy, antedated the impugned

order and disqualified the petitioner. The petitioner alleged

that this was a counter blast to a protest staged by the

petitioner on 06.05.2022 against the functioning of the

respondent No.3 and the lack of coordination by the

member of Legislative Assembly. The petitioner contended

that he, thereafter, obtained a certified copy of the

impugned order and has filed this writ petition challenging

the same on the following grounds:

i) The impugned order is without jurisdiction as it was passed on the complaint of the respondent No.2 which was addressed directly to the respondent No.1 instead of addressing it to the Chief Executive Officer of the respondent No.3. It is claimed that the Act of 1987 envisaged penal consequences and therefore, had to be applied strictly.

ii) That the respondent No.2 had lodged the complaint with the respondent No.1 without any authority to do so. It is contended that if he had the authority then the State President of JD(S) would not have filed the complaint on 18.11.2020 with the Commissioner of the City Municipal Council, Chintamani.

iii) That the complaint filed by the respondent No.2 and the State President were without the authorisation from the Political Party. The

complaint filed by the respondent No.2 was in his personal capacity.

iv) That the petitioner denied receipt of the 'whip notice'. He alleged that the 'whip notice' dated 29.10.2010 was issued by the State President of JD(S) Sri. H.K.Kumaraswamy without any specific delegation or authority as provided in the byelaws of JD(S). That the respondent No.1, though referred to this ground in the impugned order, failed to frame an issue and answer it as the burden of proof to establish the authority in law to issue 'whip notice' must be discharged. The respondent No.1 merely framed an issue regarding the service of 'whip notice' and its defines, but did not deal with the authority of respondent No.2 to lodge a complaint and the authority of the State President of JD(S) to issue a whip.

v) That the 'whip notice' allegedly served on the petitioner did not carry his signature. The photographs referred to, in the impugned order were not furnished to the petitioner.

vi) The respondent No.1 did not comply with the principles of natural justice, in as much as the documents attached to the complaint of the respondent No.2 was not furnished to the

petitioner. That the respondent No.1 was exercising a quasi-judicial function and therefore, had to provide adequate opportunity to cross-examine the complainant as well as the State President of JD(S), who allegedly issued the whip.

9. The respondent No.2 has opposed this writ

petition contending that the 'whip notice' was served on

the petitioner on 29.10.2020 and that the petitioner had

acknowledged the receipt of the same by endorsing his

signature thereon. He contended that since the petitioner

himself had annexed a copy of the 'whip notice' to the writ

petition, this indicated that he was served with the 'whip

notice'. Further, he relied upon a judgment passed by this

court in B.C.Parthasarathy and others vs Deputy

Commissioner, Mysore District and others [ILR 2012

KAR 1], where a complaint made directly to the Deputy

Commissioner was held to be valid. It is further contended

that the authority of the State President to issue a whip

cannot be challenged on the ground that he is not

authorised. It is claimed that the 'whip notice' was not only

issued to the petitioner but also to the other Councillors,

who were elected from JD(S). It was also contended that

the petitioner was given adequate opportunity before the

respondent No.1, which is evident from the proceedings

sheet itself and therefore, the petitioner cannot accuse the

respondent No.1 of not complying the principles of natural

justice.

10. The respondent No.1 opposed the writ petition

contending that the procedure as contemplated under law

was followed in disqualifying the petitioner. It is contended

that the respondent No.1 not only considered the

complaint dated 03.11.2020 lodged by the respondent

No.2, but also the complaint dated 18.11.2020 lodged by

the State President of JD(S). It is claimed that the

petitioner having violated the 'whip notice' was rightly

disqualified. In so far as the allegation that the petitioner

was not provided enough opportunity, it is stated that

nothing prevented him from entering the witness box and

to lead evidence. It claimed that the District President of

JD(S) was entitled to initiate the proceedings.

11. The learned Senior counsel, Sri. D.N. Nanjunda

Reddy representing the petitioner submitted at the time of

arguments that the petitioner would not press the issue

regarding the non-service of the 'whip notice' on the

petitioner. He contended that the complaint lodged by the

respondent No.2 with the respondent No.1 directly,

violated the procedure prescribed under Section 4 of the

Act of 1987. He also contended that the respondent No.2

was not authorised to lodge a complaint as it is only a

member, Councillor or a political party which is entitled to

lodge the complaint under Section 4 of the Act of 1987. He

contended that the respondent No.2 did not produce any

authorisation from the political party to lodge a complaint.

He also contended that though the petitioner had

challenged the authority of the State President to issue a

'whip notice' and though the respondent No.1 took

cognizance of this contention, yet he failed to answer the

same.

12. The learned Senior counsel placed reliance on

the following judgments:

i) Sadashiv H Patil vs. Vithal D. Teke and

others [(2000) 8 SCC 82] to contend that a

disqualification has the effect of unseating a person

from an elected office. The consequences befall not

only him as an individual but also the constituency

represented by him. Hence, having regard to the

consequences flowing from such disqualification, the

provisions of the Act should be construed strictly.

ii) B.C.Parthasarathy (supra), where a

Division Bench of this Court while considering a case

of disqualification under the Act of 1987 by a

Councillor who had violated a whip issued by the

State President of JD(S) held that no documents

were placed to show that JD(S) political party had

authorised the State President to issue the whip and

in that context, the State President had issued a

whip.

iii) Ms. Srimathi Bangera and another vs.

President (Acting), District Congress

Committee, Kodagu District and another [ILR

2017 KAR 2419] in support of the contention that

the President of the Karnataka Pradesh Congress

Committee is not authorised to empower its General

Secretary to further sub-delegate his power to the

President of the District Congress Committee.

iv) Judgment dated 08.12.2021 passed in

W.A.No.200167/2021, where a Division Bench of this

Court noticed the several discrepancies in the matter

of the service of whip on the disqualified Councillor.

Nonetheless, the Deputy Commissioner relied on

other materials such as publication of newspapers

and statements made by the Members of the Indian

National Congress etc.,

v) Smt. Shobha vs. State Election

Commission, by its Commissioner, Bangalore

and others [ILR 2003 KAR 3104], where a Co-

ordinate Bench of this Court set aside an order of

disqualification due to discrepancies in the issuance

of the whip.

13. The learned counsel for the respondent No.2,

on the other hand, placed on record the bye-laws of Janata

Dal (Secular) Party which provided for the issuance of whip

and the same is extracted below:

"1. There shall be a secretary and a whip apart from the leader to be elected or nominated in each Parliamentary, Legislature and Local body units or the elected people's representatives belonging to the party.

2. Such whip of the elected parliamentary parties in each houses of state legislatures or parliament shall have power and authority to issue whips in writing which shall be recorded in writing in the minutes of the respective legislature party to all members of such parliamentary party on all matters requiring presence or voting on the floors of the respective Houses.

3. The aforesaid whips in writing by the whips shall be issued as instructed by or on the authority of the respective leaders of the concerned parliamentary or local body parties.

4. The whips in writing to be addressed to the members belonging to the party in local bodies shall be issued by the whips either elected or appointed in such party units in each local body by or amongst party members only under the authority of or instructions from the President of the State Units of the Party or the person authorized by him in that regard.

5. In the event of any dispute as and when arises in any matter relating to the aforesaid clauses or provisions or any implication, interpretation, definition etc., relating to the whip of the party at any parliamentary, legislative or local body units of the party, the decision of the National President of the Party shall be final and binding on the party and all matters covered by such decision.

6.   The    aforesaid       decision        of    the   National
     President      shall     be       communicated            to

Speakers, Chairmen or presiding officers, as

the case may be, of the aforesaid Houses of legislatures or local body by the leaders of the party unit in such body or the state president concerned.

14. The learned counsel for the respondent No.2

placed reliance on following judgments:-

1. Makandar Zakir Hussain Abdulbin vs. Deputy Commissioner [(2012) 6 KLJ 604] and contended that the Division Bench of this Court had held that an order passed by the Deputy Commissioner on the complaint directly made to him cannot be held to be bad in law and that acts of disqualification cannot be glassed over on technical grounds of procedural irregularity.

2. Smt. Bhagyamma G.N. vs. The Government of Karnataka [(2021) 4 KCCR 3118], where a whip issued by the District President of political party was held to be valid and that the violation of such whip had to result in consequence provided under the Act of 1987.

3. The order dated 21.04.2022 passed in W.P.105239/2021, where a Co-ordinate Bench of this Court noticed the purpose of the anti-

defection law in the light of the judgment of the Hon'ble Apex Court in Kihoto Hollohan vs. Zachillhu and others [1992 Supp. (2) SCC 651] and held that the violation of Act of 1987 has to be viewed strictly.

15. By way of reply, the learned Senior counsel,

Sri. D.N. Nanjunda Reddy submitted that though the

Division Bench of this Court in Makandar Zakir Hussain

Abdulbin (Supra) held that a complaint lodged directly to

the Deputy Commissioner is not bad in law, yet the

question whether respondent No.2 was authorised to lodge

a complaint had to be answered by the respondent No.1.

16. The learned Additional Government Advocate

secured the records from the Office of the respondent

No.1, which discloses that the petitioner had cast his vote

in favour of the candidate from the Bharatiya Praja Party.

Based on this, the respondent No.2, being a President of

JD(S) of Chikkaballapura District, had lodged a complaint

with the respondent No.1 accusing the petitioner of cross-

voting by defying the whip issued by its State President.

Based on this complaint, the respondent No.1 held

proceedings on 12.01.2021 fixing the date of hearing on

27.01.2021. However, on 27.01.2021 and 05.02.2021, the

respondent No.1 did not preside over the proceedings. On

12.02.2021, it was adjourned to 12.03.2021. On

12.03.2021, 26.03.2021, 03.04.2021, the respondent No.1

did not preside and the case was adjourned to 08.04.2021,

on which day, it was adjourned to 15.04.2021. On

15.04.2021, 20.04.2021, 23.04.2021, 07.05.2021,

10.06.2021 the respondent No.1 did not preside. On

05.07.2021, the petitioner appeared through counsel and

filed documents and the case was adjourned to

19.07.2021. On 19.07.2021, the case was adjourned at

the request of the petitioner's counsel to 09.08.2021. On

09.08.2021, there was no sitting and the case was

adjourned to 30.08.2021 on which day, the petitioner

sought time and the case was adjourned to 17.09.2021.

On 17.09.2021, 27.09.2021, 27.10.2021, 24.11.2021,

15.12.2021, 21.12.2021, no proceedings were held. On

28.12.2021, the petitioner filed his objections and sought

for documents and the case was adjourned to 29.12.2021,

on which day there was no proceedings and the case was

adjourned to 04.01.2022. On 04.01.2022, the counsel for

the petitioner stated that his objections may be treated as

his arguments and placed on record certain documents.

The respondent No.1 heard the parties and reserved the

case for orders and pronounced it on 22.04.2022. In the

meanwhile, the State President of JD(S) lodged a

complaint with the Commissioner of the City Municipal

Council on 18.11.2020 which was received by him on

24.11.2020. The respondent No.1 based on the signatures

of the petitioner found on the 'whip notice' as well as the

photographs placed on record, held that the 'whip notice'

was served on the petitioner and since the petitioner had

cross-voted in favour of the candidates from Bharatiya

Praja Party, held that the petitioner had violated the whip

and therefore, was liable to be disqualified.

17. The facts that are not in dispute are that,

(i) Elections to the post of President and Vice-

President for the 9th term of the City

Municipal Council, Chintamani was held on 01.11.2020.

(ii) that the political party Janata Dal (S), on whose ticket the petitioner had contested and won, had fielded its candidates for the post of President and Vice-President.

(iii) that the petitioner had voted in favour of the candidates belonging to Bharatiya Praja Party who were declared as returned candidates.

(iv) that the respondent No.2 was the District President of Janata Dal (S), Chikkaballapura.

(v) that the respondent No.2 had lodged a complaint with the respondent No.1 on 03.11.2021 accusing the petitioner of violating a 'whip notice' issued by the State President of JD(S) on 29.10.2020.

18. In view of the submissions of the learned

Senior Counsel, the following facts were deemed to be not

in dispute:

(i) That the whip issued by the President of JD(S) was served on the petitioner.

(ii) That the complaint lodged by respondent No.2 with respondent No.1 directly was not bad in law.

19. Therefore, the only contentions raised that

deserve consideration are that;

(i) the respondent No.2 was not authorised to lodge a complaint with the respondent No.1 under the Act of 1987.

(ii) that the State President of JD(S) was not authorised to issue the 'whip notice'.

(iii) that the State President of JD(S) had also lodged a complaint which was not considered.

20. In order to understand the scope and

procedure of proceedings under the Act of 1987, the

following provisions are relevant:

i) Section 4 : A political party is defined

under Section 2(vi) of the Act of 1987, which is as

follows:

"(vi) "political party" in relation to a councilor or member 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."

21. The bye-laws of JD(S), which are not disputed

by the petitioner, empowers the President of JD(S) to

appoint whips in Party Units in each Local Body. This,

therefore, indicates that the President of JD(S) is himself

entitled to issue whips to its members in any Local Body

without electing or appointing any whip amongst the Party

units. The petitioner, who is a Member of JD(S), therefore,

cannot challenge the authority of the State President to

issue whip contending that he was not authorised by the

political party to issue the whip. The Judgment in

B.C.Parthasarathy (supra), relied upon by the learned

Senior Counsel for the petitioner is distinguished on facts,

in as much as, in that case, the then bye-laws provided for

an authorisation but in the present case, the President

could authorise any elected member to issue whips.

22. In so far as the service of the whip issued by

the President is concerned, the petitioner did not dispute

his signature found on the 'whip notice' that was a part of

the records before the respondent No.1. He also did not

dispute the photographs that were placed before the

respondent No.1 which indicated attempts made by JD(S)

to serve the whip. Therefore, it can safely be held that the

petitioner was aware of the whip issued by the State

President of JD(S) to all its members in the City Municipal

Council, Chintamani, to cast their vote in favour of its

nominees. The petitioner does not dispute that he had

cast his vote in favour of the nominees of Bharatiya Praja

Party. Therefore, the petitioner had indeed committed an

act of defection by violating a whip issued to him by the

State President of JD(S).

23. Now coming to the question whether the

respondent No.1 was right in entertaining the complaint of

respondent No.2 directly, a Division Bench of this Court in

Makandar Zakir Hussain Abdulbin (supra) had held that

Section 4(1) of the Act of 1987 relating to lodging a

complaint with the Chief Executive Officer of the local

authority is merely directory and not mandatory. The

learned Senior counsel representing the petitioner could

not demonstrate what right of the petitioner was infringed

in the respondent No.1 directly entertaining the complaint

and whether such procedural irregularity affected the

process itself. Therefore, the contention of the petitioner

that the proceeding before the respondent No.1 was

without jurisdiction is liable to be rejected.

24. In so far as the contention that the respondent

No.2 was not an authorised person to lodge a complaint,

Section 4 of the Act of 1987 enables a Councillor, a

member or a political party to lodge complaint accusing

the Councillor of defecting. The respondent No.2 was

neither a Councillor or a member, but was certainly a part

of political party.

25. The compliant lodged by the respondent No.2

with the respondent No.1 discloses that such complaint

was lodged as the District President of JD(S),

Chikkaballapura. This complaint was not filed in the

individual capacity of the respondent No.2 and therefore, it

is deemed that the complaint was filed by the political

party and therefore, there is no lacuna in the respondent

No.2 lodging the complaint with the respondent No.1.

26. The next question is regarding the compliance

of principles of natural justice by the respondent No.1. The

petitioner did not raise any objection before the

respondent No.1 complaining about the non-observance of

the principles of natural justice. It is before this Court that

he contends that the respondent No.1 did not lead his

evidence and that he was not provided with a copies of the

documents attached to the complaint and that he was not

provided with an opportunity to lead evidence. The concept

of principles of natural justice is though immutable but

cannot be put in a legal strait jacket but is flexible. The

question whether the requirements of natural justice have

been complied or not has to be considered in the facts and

circumstances of each case.

27. As stated earlier, the respondent No.1 issued a

show-cause notice to the petitioner as to why action under

the Act of 1987 should not be initiated. The petitioner was

given ample opportunity to file his objections and also

produce documents. The petitioner did file objections but

did not choose to lead any evidence. He prayed that the

statement of objections filed by him may be considered as

his arguments. Therefore, the petitioner cannot now

accuse the respondent No.1 of not complying with the

principles of natural justice and/or that he was not

provided with an opportunity to lead evidence etc.,

28. In view of the above, there is no merit in the

writ petition and the same is dismissed.

Sd/-

JUDGE

PMR