Karnataka High Court
Sri K M Mune Gowda vs State Of Karnataka on 21 December, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2023:KHC:46815
WP No. 28873 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
R
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 28873 OF 2023 (LB-ELE)
BETWEEN:
SRI K M MUNE GOWDA
AGED ABOUT 45 YEARS,
S/O MUNIVENKATAPPA,
KADASEGENAHALI VILLAGE,
NANDI HOBLI,
PRESIDENT, JANATHA DAL (S)
CHIKKABALLAPURA DISTRICT-562101.
...PETITIONER
(BY SMT. RADHA JAYANTHI C S.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY,
AMBEDKAR VEEDHI,
VIDHANA SOUDHA, BANGALORE-560001.
Digitally signed
by 2. THE ELECTION OFFICER
NARAYANAPPA
LAKSHMAMMA CITY MUNICIPAL COUNCIL
Location: HIGH CHINTAMANI CITY-562160.
COURT OF
KARNATAKA 3. SRI MOHAMMED SHAFEEQ
S/O ABUDUL JALIL,
WARD NO. 13, MEMBER
CHINTHAMAIN TOWN MUNICIPAL
NO. 241, 3RD CROSS, SRINIVASAPURA ROAD,
SONNASHETTIHALLI, CHINTAMANI-563125.
...RESPONDENTS
(BY SRI. NAVEEN CHANDRASHEKAR., AGA FOR R1 & R2;
SRI. PREETHAM JUDE CORREA.,ADVOCATE FOR R3)
-2-
NC: 2023:KHC:46815
WP No. 28873 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHED-A ORDER DATED
16/12/2023 PASSED BY THE R2 AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The learned AGA accepts notice for respondents No.1
and 2.
2. Sri.Preethan Jude Correa, counsel accepts notice for
respondent No.3.
3. The petitioner is before this Court seeking for the
following reliefs:
a. Quashed - A order dated 16.12.2023 passed by the
2nd respondent.
b. Issue such other writ, order or direction as maybe
deemed necessary in the interest of justice and
equity.
4. Respondent No.3 being elected as a councillor to the
Chintamani City Municipal Council, Chintamani was
disqualified under Section 3(b) of the Karnataka
Local Authorities (Prohibition of Defection) Act, 1987
NC: 2023:KHC:46815
(for short, 'the Act') by the Deputy Commissioner and
Election Officer, Chikkaballapur vide order dated
22.04.2022. Challenge made to the said order in
W.P.No.10298/2022 was dismissed by this Court vide
order dated 30.06.2022 which was challenged in
W.A.No.627/2022 wherein the matter was remanded to
the Deputy Commissioner. The Deputy Commissioner by
an order dated 28.10.2022 once again passed an order of
disqualification. The second order of disqualification was
challenged by respondent No.3 in W.P.No.22225/2022
which came to be dismissed vide order dated 16.11.2022.
The matter being taken up on appeal, the Division Bench
dismissed the same vide its order dated 13.02.2023 in
W.A.No.1242/2022. Thereafter, by-election being
declared, respondent No.3 submitted his nomination
papers, which came to be accepted. It is challenging the
same, the petitioner is before this Court.
5. Smt.Radha Jayanthi, learned counsel for the petitioner
would submit that:
NC: 2023:KHC:46815
5.1. The respondent No.3 having been disqualified,
the question of accepting the nomination
papers would not arise. Upon disqualification,
respondent No.3 is also disqualified from
contesting the by-election. As such, the
acceptance of the nomination would have to be
set aside and respondent No.3 be restrained
from contesting in the election to be held on
27.12.2023.
6. Sri.Naveen Chandrashekar, learned AGA appearing
for respondents No.1 and 2 would submit:
6.1. By relying upon the decision of the Hon'ble
Apex Court in the case of Shrimanth
Balasaheb Patil vs. Speaker, Karnataka
Legislative Assembly and others1 more
particularly Paras 127 to 131 thereof would
submit that the disqualification does not
1 (2020) 2 SCC 595
NC: 2023:KHC:46815
prohibit the disqualified person from contesting
an election. The disqualification being under
Section 3(1)(b) of the Act, the disqualification is
virtually on account of violation of Tenth
Schedule which has been considered by the
Hon'ble Apex Court in Shrimanth Balasaheb
Patil's case and the Hon'ble Apex Court has
come to a categorical conclusion that there is a
difference in phraseology used in Article 191(1)
and Article 191(2) of Constitution of India.
Article 191 (1) of the Constitution of India
speaks of disqualification for being chosen as
and for being a member of the house whereas
Article 191 (2) of the Constitution of India
speaks of only a person being disqualified for
being a member of the Legislative Assembly or
Legislative Council.
6.2. Thus, he submits that the disqualification which
is now made under Section 3(1)(b) of the Act is
one made under Article 191(2) of the
NC: 2023:KHC:46815
Constitution of India and as such, the
disqualification when the order was passed was
only for being a member and not for being
chosen as a member and as such, he submits
that the order of such disqualification would not
impose embargo on contesting in a fresh
election. On these grounds, he submits that
the Writ Petition is required to be dismissed.
7. Sri.Preetham Judge Correa, learned counsel for
respondent No.3 adopts the submissions of the
learned AGA.
8. Heard Smt.Radha Jayanthi, learned counsel for the
petitioner, Sri.Naveen Chandrashekar, learned AGA
appearing for respondents No.1 and 2 and
Sri.Preetham Judge Correa, learned counsel for
respondent No.3 and perused the papers.
9. The point that would arise for consideration is
whether a disqualification made of a councillor
NC: 2023:KHC:46815
under Section 3(1)(b) of the Act would impose
a prohibition on such disqualified member from
contesting a by-election during the very same
term of Municipality?
10. Section 3(1)(b) of the Karnataka Local Authorities
(Prohibition of Defection) Act, 1987:
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,-
XXX
(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;
XXX
11. In terms of the aforesaid provision, it is clear that if a
councillor or a member belonging to any political
NC: 2023:KHC:46815
party votes or abstains from voting 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, such person would be
disqualified unless such voting abstention or absence
has been condoned by such political party, person or
authority.
12. In the present case, the allegation against
respondent No.3 was that respondent No.3 voted
against the whip of the party that he belongs to and
as such, was disqualified under Section 3(1)(b) of
the Act by the Deputy Commissioner by exercising
powers conferred on him in terms of Section 4(2)(iii)
of the Act. Thus, the disqualification made is on
account of respondent No.3 voting against the whip
NC: 2023:KHC:46815
and not for any reason stated in Article 191(1) of the
Constitution of India.
13. Article 191 of the Constitution of India is reproduced
hereunder for easy reference:
191. Disqualifications for membership.--(1) A person
shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or
Legislative Council of a State--
(a) if he holds any office of profit under the
Government of Indiaor the Government of any
State specified in the First Schedule, other than an
office declared by the Legislature of the State by
law not to disqualify its holder
(b) if he is of unsound mind and stands so declared by
a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is
under any acknowledgment of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under any law made by
Parliament.
Explanation.--For the purposes of this clause], a
person shall not be deemed to hold an office of
profit under the Government of India or the
Government of any State specified in the First
Schedule by reason only that he is a Minister either
for the Union or for such State.
(2) A person shall be disqualified for being a
member of the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the
Tenth Schedule.
- 10 -
NC: 2023:KHC:46815
14. The Hon'ble Apex Court in the case of Shrimanth
Balasaheb Patil vs. Speaker, Karnataka
Legislative Assembly and others2 more
particularly Paras 127 to 131 thereof has held as
under:-
127. The crucial question which arises is whether
the power of the Speaker extends to specifically
disqualifying the members till the end of the term?
128. The Tenth Schedule of the Constitution while
dealing with disqualification on account of
defection, does not specify the consequences or
period of such disqualification. In fact, the vacancy
which results from the disqualification is provided
under Article 190(3) of the Constitution. The scope
of the Speaker's powers on disqualification requires
us to examine the other provisions of the
Constitution and relevant statutory provisions.
129. Article 191 of the Constitution provides for
disqualification from the membership of the
Legislative Assembly or Legislative Council of a
State generally. Article 191(1) of the Constitution is
a general provision providing for the disqualification
from the membership of the Legislative Assembly
or the Legislative Council of a State on the grounds
mentioned therein. Article 191(2) of the
Constitution specifically provides that a person
disqualified under the Tenth Schedule is
disqualified for being a member. It is relevant to
note that Article 191(2) of the Constitution, like the
Tenth Schedule, does not provide that the
"disqualification" is to operate for a particular
period or duration.
2 (2020) 2 SCC 595
- 11 -
NC: 2023:KHC:46815
130. The contrast in phraseology between Article
191(1) and Article 191(2) of the Constitution is
crucial for deciding the present controversy. Article
191(1) of the Constitution provides that a person
disqualified under any one of the clauses of Article
191(1) is disqualified both "for being chosen as"
and "for being" a Member of the House. In
contrast, Article 191(2) only uses the phrase "for
being a member", which is the language used in
Para 2 of the Tenth Schedule. The exclusion of the
phrase "for being chosen as" a Member in Article
191(2) of the Constitution suggests that the
disqualification under the Tenth Schedule is
qualitatively and constitutionally different from the
other types of disqualification that are provided for
under Article 191(1) of the Constitution. The
phrase "for being chosen as" has a specific
connotation, meaning that a person cannot become
a Member of the House, if suffering from a
disqualification under Article 191(1) of the
Constitution. At the same time, the absence of
these words in Article 191(2) of the Constitution
suggests that a person who is no longer a Member
due to disqualification under the Tenth Schedule to
the Constitution does not suffer from the additional
infirmity of not being allowed to become a Member
subsequently. Therefore, such a person is not
barred from contesting elections.
131. This interpretation is further supported by the
language employed in Section 36(2) of the
Representation of the People Act, 1951, which
provides for when a Returning Officer may reject
the nomination of a candidate. Section 36(2)(a) of
the Representation of the People Act, 1951 states
that the nomination may be rejected if a candidate
is disqualified "for being chosen" to fill the seat
under Article 191 of the Constitution, echoing the
language employed in Article 191(1), and not
Article 191(2) of the Constitution.
15. In terms of Article 191 (1) of the Constitution of
India, a person if disqualified for "being chosen as",
- 12 -
NC: 2023:KHC:46815
and for being a member of the Legislative Assembly
or Legislative Council for the reason stated in clause
(a) to (e) above i.e., if any person were to suffer
from any of the disqualification in terms of clause (a)
to (e), then he would not be entitled to even contest
in a election, let alone being a member of the
Assembly or Council.
16. In terms of Article 191(2) of the Constitution of
India, a person shall be disqualified from being a
member of the Assembly or Council if he is so
disqualified under the Tenth Schedule. Thus, Article
191(2) of the Constitution of India, is only a
disqualification from being a member of the
Assembly or Council. There is no disqualification
from contesting for election or being chosen to a
Legislative Assembly or Council.
17. This aspect has been dealt with in Para 130 of the
judgment in Shrimanth Balasaheb Patil's case,
- 13 -
NC: 2023:KHC:46815
which has been reproduced hereinabove and the
Hon'ble Apex Court has come to a categorical
conclusion that disqualification under Article 191(2)
of the Constitution of India would only apply for its
existing membership and that there is no prohibition
for such person to be re-elected in a by-election or a
subsequent election, that is to say that the
disqualification under Article 191 (2) of Constitution
of India would not come in the way of such person
contesting for any subsequent election. Applying the
said dicta to the present case, respondent No.3
seeking to contest in the by-election post the
disqualification would be covered by the decision in
Shrimanth Balasaheb Patil's case permitting him
to contest such by-election.
18. Hence, I answer the point raised by holding that the
disqualification of a councillor in terms of Section
3(1)(b) of the Act will not create an embargo or
prohibition on such disqualified person from
- 14 -
NC: 2023:KHC:46815
contesting any subsequent by-election or election
post of disqualification.
19. In that view of the matter, the acceptance of the
nomination papers by the respondent No.2 cannot be
one which goes to the root of the matter requiring
this Court to exercise powers under Article 226 and
227 of the Constitution of India. If at all the
petitioner is aggrieved by the same, the petitioner
could exercise his right by filing an Election Petition
by relying on the grounds laid down in Section 23 of
the Karnataka Municipalities Act 1964 if so advised.
20. The Writ Petition stands disposed with the above
observations.
Sd/-
JUDGE
PRS
