Karnataka High Court
N. Shivanna And Ors. vs The Deputy Commissioner And Ors. on 30 July, 2004
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
ORDER Ram Mohan Reddy, J.
1. The petitioners, being aggrieved by the order dated 23-9-2002 in case No. ELN(2) CR 56/2001-02 on the file of the Deputy Commissioner, Chamarajanagar District, Chamarajanagar, declaring them as having been disqualified from being members of the 2nd respondent-Town Municipal Council, under the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, the 'Act'), have filed these writ petitions.
2. The 2nd respondent-Town Municipal Council has 23 Wards for which elections were held on 3-5-2001. 11 candidates belonging to Janata Dal (U) and 11 candidates from the Congress (I) along with one independent, were declared elected. The petitioners and the 3rd respondent belong to Janata Dal (U) Political party.
3. The Tahsildar, Gundlupet, on 24-12-2001 issued a notice for the meeting of the Members of the 2nd respondent-Council to be held on 4-1-2002, for election to the office of President and Vice-President, which was acknowledged by the petitioners. It is the case of the 3rd respondent that a whip, dated 3-1-2002, was issued by the President of the District Janata Dal (U) party, directing the Members of the Janata Dal (U) party to vote for the 3rd respondent, a candidate, seeking election to the Office of President of the 2nd respondent-Town Municipal Council, and that the petitioners intentionally absented themselves from the meeting on 4-1-2002, and consequently did not cast their votes, which action was contrary to the whip. It is the further allegation of the 3rd respondent that due to the aforesaid action of the petitioners, the 3rd respondent fielded by the Janata Dal (U) party, lost in the election and the political party has not condoned the abstention of the petitioners or from violating the whip, within 15 days from 4-1-2002. On the said allegations, the 3rd respondent made a complaint on 15-1-2002, under Section 4 of the Act, to the Chief Executive Officer, the 2nd respondent herein, to declare the petitioners as having become subject to disqualification under Section 3 of the Act, which complaint was referred to the 1st respondent for a decision thereof.
4. In the complaint filed by the 3rd respondent, it is alleged that the President of the Karnataka State Unit of Janata Dal (U) party had authorised the District President of the said party of Chamarajanagar District to issue a whip to the Councillors of Janata Dal (U) party to attend the meeting on 4-1-2002 and to exercise their vote in favour of the 3rd respondent, candidate fielded by the party for the Office of the President of the 2nd respondent. It is the specific allegation of the complainant that the petitioners left Gundlupet on 30-12-2001, stayed at Kundapur with an intention of absenting themselves from the meeting scheduled to be held on 4-1-2002. It is the further allegation of the 3rd respondent that although the District President personally met the petitioners at Kundapur and sought to pursuade them to attend and vote for the 3rd respondent in the election to be held on 4-1-2002, the petitioners intentionally abstained from attending the meeting. In addition, it is alleged that the party leaders were awaiting the return of petitioners on 3-1-2002 so as to serve the whip and to secure the presence of the petitioners at the meeting, but, they intentionally stayed away from Gundlupet and thereby avoided personal service of the whip. However, it is stated, that the whip was served on the petitioners, by way of affixing a copy of the letter on the wall of the residential premises belonging to the petitioners, as the members of their respective family refused to receive the whip.
5. The complaint of the 3rd respondent was contested by the petitioners, by filing their reply, denying the allegation and calling upon the 3rd respondent to prove each of the allegations. The petitioners denied the claim of a letter of authorisation said to be issued by the political party and the whip dated 3-1-2002, so also, its affixture on their residential premises. The petitioners stated that the President of the District Unit, Chamarajanagar, had issued a show-cause notice dated 15-1-2002 for violating the whip, to which the petitioners submitted their reply. The case of the petitioners is that they went on a pilgrimage with an intention to return and attend the 1st meeting of the Council on 4-1-2002, but, due to reasons beyond their control, the motor vehicle, in which they were travelling, met with a mechanical break down delaying their return resulting in their inability to attend the meeting on 4-1-2002, although they reached Gundlupet at 12.30 p.m. on the same day.
6. The 1st respondent recorded the depositions of the complainant and 11 other witnesses as P.Ws. 1 to 12 and marked 34 documents as Exhibits P. 1 to P. 34. The 1st petitioner examined himself as D.W. 1 and marked 13 documents as Exhibits D. 1 to D. 13. The 1st respondent, on an independent assessment of both oral and documentary evidence, held that the petitioners had acted contrary to the whip and were disqualified from being Members of the 2nd respondent-Town Municipal Council, by order dated 23-9-2002, impugned in these writ petitions.
7. Before proceeding to consider the contentions of the parties, it is useful to refer to the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil v. Vithal D. Teke, wherein his Lordship R.C. Lahoti, J., as he then was, speaking for the Bench, observed thus:
"13. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act".
The relevant provision regarding disqualification on the ground of defection is Section 3(1) 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) xxx xxx 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.
Explanation.--xxxx".
The complaint that a Member has become subject to disqualification and a decision on the said question is provided for under Section 4 of the Act, which 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) xxx xxx xxx (b) in a case falling under Clause (b) of Sub-section (1), after the expiry of fifteen days specified therein; (c) xxx xxx xxx
(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) xxx xxx xxx (ii) in the case of Municipal Corporation, to the Divisional Commissioner"
8. The case of the 3rd respondent is that the petitioners inter se hatched a conspiracy to defeat him in the elections to the Office of President of the Town Municipal Council, Gundlupet, to be held in the 1st meeting of the Council on 4-1-2002, despite service of whip dated 3-1-2002, by affixture on 4-1-2002. It is alleged that in furtherance of the aforesaid intention of the petitioners, they intentionally remained absent from the meeting. In order to attract the provisions of disqualification for being a Councillor under Clause (b) of Sub-section (1) of Section 3 of the Act, the Councillor must necessarily be served with a direction issued by a Political party to which he belongs or any person or party, authorised by it in this behalf and he should intentionally remain absent without prior permission and the same was not condoned within 15 days from the date of abstention.
9. Having regard to the observations of the Hon'ble Supreme Court in Sadashiv H. Patil's case, supra and the serious nature of consequences and repercussions on the disqualification of a Member duly elected in a democratic process, the provisions of the Act have to be strictly construed. While dealing with a complaint under Section 4 of the Act, it is essential that there must be a rigorous compliance of the provisions of the Act.
10. Sri Gangireddy, learned Counsel for the petitioners would contend that the complaint filed on 15-1-2002 under Clause (b) of Sub-section (1) of Section 4 of the Act, by the 3rd respondent is not maintainable as being premature. Elaborating on the said contention, Sri Reddy would point out to Clause (b) and firstly, submit that the period of 15 days from 4-1-2002, the date of the 1st meeting, had not elapsed and secondly, the condonation of abstention of the petitioners from the 1st meting is pending consideration in view of the show-cause notice dated 15-1-2002 issued by the District President to which the petitioners had caused their replies.
11. Per contra, Sri Jayakumar S. Patil, learned Senior Counsel for the 3rd respondent would contend that the period of 15 days is only to enable the petitioners to secure condonation of abstention from the political party, which would not come in the way of filing complaint. Learned Senior Counsel would further contend that although the complaint was filed on 15-1-2002, the 1st respondent actually initiated action on the complaint only on 19-1-2002 by ordering issue of notice to the petitioners and fixing the date of hearing as 30-1-2002. Sri Patil, would place reliance on the decision of the Apex Court in the case of Narsingh Das Tapadia v. Goverdhan Das Partani and Anr., to contend that a complaint under the provisions of Section 138(c) of the Negotiable Instruments Act, 1881, filed before the expiry of the notice period contemplated under the said section cannot be dismissed as premature. Since taking cognizance and filing complaints are distinct things, Sri patil would seek to import the very same findings to a proceeding under Section 4 of the Act.
12. From a plain reading of Clause (b) of Sub-section (1) of Section 4 of the Act, a complaint can be filed only after the expiry of the period of 15 days specified in Clause (b) of Sub-section (1) of Section 3 of the Act. In other words, a complaint may be filed after expiry of 15 days from the date of abstention from the meeting, if during such period, the absence is not condoned by the political party. The Act, unlike the law of limitation, which provides for inner limit within which action must be initiated, provides for inner limit within which no action can be initiated. The purpose of providing the said period of 15 days is to enable the Councillors to secure the condonation of abstention from the meeting, by the political party. The Member would become disqualified from being a Councillor, if within a period of 15 days from the date of abstention, he does not secure the necessary condonation from the political party. On securing such a condonation within the said period, the Member shall not be liable for disqualification from being a Councillor. The language of the section leaves no room for doubt that the legislative intendment was to enable the Member, liable for disqualification, to secure from the political party, condonation of abstention from the meeting.
13. Clause (b) of Sub-section (1) of Section 4 of the Act provides for filing of the complaint after the expiry of the period of 15 days stipulated in Section 3 of the Act, noticed supra. It is obvious, that the lodging of a complaint within the period of 15 days would render the complaint infructuous, if in the event, the political party were to condone the abstention of the member.
14. The facts of this case disclose that the Janata Dal (U) political party, to which the petitioners belong, did not condone their abstention from the 1st meeting held on 4-1-2002 of the Town Municipal Council within the period of 15 days or in fact at any time thereafter, and as a result, became liable to be disqualified from being Councillors. The complaint was filed on 15-1-2002, though in terms of Section 4 of the Act, it ought to have been made on 19-1-2002, while the 2nd respondent ordered the issue of notice to the petitioners on 19-1-2002. Although the complaint should have been filed on 19-1-2002, after the expiry of 15 days from 4-1-2002, the same was filed on 15-1-2002 which is found fault with as being premature and not maintainable. The Hon'ble Supreme Court in Narasingh Das Tapadia's case, supra, considering the provisions of Section 138 of the Negotiable Instruments Act, 1881, held that mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed.
15. Drawing an analogy from the observations of the Apex Court in the above case, in order to promote substantial justice, the same could be applied to the facts of this case and such an application cannot be either unreasonable or irrational. The complaint petition of the 3rd respondent filed on 15-1-2002 though ought to be filed on 19-1-2002, but, the 2nd respondent had in fact, initiated action only oh 19-1-2002 in directing notice to the petitioners. Applying the very same principles laid down by the Hon'ble Supreme Court in the aforesaid decision, the complaint petition cannot be rejected as being premature and not maintainable.
16. Sri Reddy would next contend that the political party i.e., Janata Dal (U) party, having not passed a resolution or otherwise, the General Secretary of the party, did not authorise the District President to issue a whip for the elections to the Office of the President of the Municipal Council. The letter dated 31-12-2001 said to be issued by the General Secretary is inconsistent and whip dated 3-l-2002 is inconsequential and cannot be acted upon. Sri Patil, learned Senior Counsel by way of countering the said contention, would submit that the very same fact that the letter dated 31-12-2001 addressed to the District President by the General Secretary conveying the decision to the President of the party, was in itself sufficient to establish the necessary authorisation for issue of whip. Sri Patil, would further contend that the method of issuing the whip or the modalities thereof are not prescribed by any law, rule or scheme and each political party has devised its own method. In addition, Sri Patil would point out to the depositions of P.W. 3-Sri H.S. Mahadeva Prasad, District President, who had received the written authorisation dated 31-12-2001 of the General Secretary to contend that there was sufficient proof of authorisation.
17. It is no doubt true that the petitioners have not set out the method adopted by the Janata Dal (U) political party in matters of authorising the issue of a whip, but the fact remains that the petitioners have questioned the very letter dated 31-12-2001 said to be issued by the General Secretary of the political party. The evidence of P.W. 3 that he received a letter from a messenger, in person, at 4 p.m. on 31-12-2001 and had extended a written acknowledgment for the same, by itself, and nothing more, cannot constitute substantial legal evidence of proof of the fact of the General Secretary having despatched the letter under a signature or that the President of Janata Dal (U) party had issued the directions authorizing P.W. 3 to issue a whip. The non-examination of the General Secretary as a witness for the complainant is fatal to the proceedings. The truth or otherwise of the letter dated 31-12-2001 said to be issued by the General Secretary would have been established by the evidence of the signatory to the letter dated 31-12-2001. It was incumbent on the part of the [petitioners] to examine this witness in order to establish the fact that P.W. 3 was duly authorised to issue the whip. In addition, the complainant failed to produce any material evidence to substantiate the claim that the President of the political party had duly authorised the General Secretary to convey the said decision by way of letter dated 31-12-2001, which again is a serious flaw, detrimental to the interest of the complainant. The primary evidence as regards authorisation to the District President, P.W. 3 to issue a whip is not forthcoming in this case. The 1st respondent-Deputy Commissioner, without applying him mind and not noticing the lack of substantial legal evidence, concluded that P.W. 3 was duly authorized to issue the whip. In addition, the messenger who is said to have personally delivered the letter dated 31-12-2001 is also not examined, which ought to have been done, particularly in the face of a denial by the petitioners. The contention of Sri Reddy that there was no proof of authorisation of the President to the General Secretary and the General Secretary, in turn to P.W. 3 deserves to be accepted.
18. The next contention urged by Sri Reddy is that the Janata Dal (U) party, to which the petitioner's belong, muchless any person or authority duly authorised by it, did not serve on the petitioners, either an oral whip or a written whip dated 3-1-2002, to cast their vote in the meeting to be held on 4-1-2002 in favour of the 3rd respondent, said to be a candidate fielded by the party.
19. Sri Patil, learned Senior Counsel for the complainant would contend that there is overwhelming oral and documentary evidence in respect of the fact that the petitioners were orally informed, in person, by P.W. 3-the District President, as well as served with a written whip dated 3-1-2002 by P.Ws. 5, 6 and 7. Learned Senior Counsel would point out to the depositions of P.W. 2-Nagendra, P.W. 3-H.S. Mahadeva Prasad, District President and P.W. 4-a Party Member to contend that the petitioners had taken up lodging at Hotel Hariprasad at Kundapur on 2-1-2002 and were personally informed about the whip by P.W. 3, witnessed by P.Ws. 2 and 4.
20. Although the depositions of P.Ws. 2 to 4 corroborate each others statement, in evidence, what is not forthcoming is the primary evidence of the fact that the petitioners had taken up lodging at Hotel Hariprasad, on 1-1-2002 and continued to reside there on 2-1-2002. The 3rd respondent ought to have examined some personal of Hotel Hariprasad or produce documentary proof of the petitioners having taken up lodging in the said hotel. The evidence of P.W. 2-Nagendra is to the effect that he had accompanied the petitioners and had also taken up lodging at the very same hotel from where he is said to have through telephonic conversation, communicated to P.W. 3 about the place of lodging of the petitioners. Neither the hotel bills, receipts or extract of hotel registers, muchless extracts of telephone charges/receipts are produced by the 3rd respondent in order to accept the evidence of P.W. 2 as legal evidence. P.W. 2, in his evidence has not established the fact that he had travelled along with the petitioners and stayed in hotel Hariprasad.
21. P.W. 4-Nazimuddin claims to be the Vice-President of the minorities cell of Janata Dal (U) party, His loyalty is to the party and its President and would definitely support the case of his party and hence interested in the outcome of the proceedings. Hence it is not safe to rely upon the oral testimony of P.W. 4. The photographs at Exs. P. 12 and P. 13 along with the negatives, said to have been taken at Hotel Hariprasad, with the petitioner and P.Ws. 2 to 4, though produced by the complainant, the same are not proved in the manner known to law by examining the photographer or the bills for having processed the negatives to make the positive photographs. In the absence of material evidence the mere oral testimony of P.Ws. 2 to 4 cannot constitute legal evidence of fact,
22. Eschewing evidence of P.Ws. 2 and 4, what remains is the evidence of P.W. 3. It is not in dispute that the P.W. 3 is the District President of Chamarajanagar and he is an interested witness. There is nothing on record to show that P.W. 3 had in fact travelled all the way from Chamarajanagar to Kundapur, as claimed by him and had in fact personally communicated to the petitioners about the oral whip. Having come to the conclusion that there is no evidence to prove the fact that the petitioners did take up lodging at Hotel Hariprasad at Kundapur, evidence of P.Ws. 2 to 4 is not worthy of acceptance. One important aspect of the matter is that the complainant in the complaint petition did not take up the plea of an oral whip said to have been communicated to the petitioners at Hotel Hariprasad. The claim of the oral whip is for the first time noticed in the depositions of P.W. 3. Therefore, there is an improvement of the case at the stage of recording evidence.
23. The fact that the petitioners were riot at Gundlupet on 4-1-2002 at morning hours is not in dispute. It is the specific case of the 3rd respondent that the petitioners were, in fact, in Goa, on the said day. The services of notice of the written whip dated 3-1-2002 on 4-1-2002 by affixture, on the residential premises of the petitioners by P.Ws. 6 and 7 is of no consequence. The petitioners, admittedly, having not seen in Gundlupet, could not have been served with the written whip. In fact, the affixture of the notice on the residential premises of the petitioners is also in question. The 3rd respondent examined P.W. 5-Y.N. Rajashekar, P.W. 6-S. Rajashekar and P.W. 7-R. Jayaram, in respect of affixture of the a written whip on 4-1-2002. these witnesses, admittedly, are members of Janata Dal (U) party, their loyalty is in favour of Janata Dal (U) party and P.W. 3-the District Party President. It is beyond doubt that these witnesses would support the case of P.W. 3 and are interested in the outcome of the proceedings. It is, therefore, not safe to rely upon the depositions of these witnesses. If the statement of these witnesses are eschewed, then there remains no evidence to substantiate the fact of service of written ship, on the petitioners, on 4-1-2002.
24. Lastly, it is contended by Sri Reddy that the conclusions arrived at by the 1st respondent is based on inadmissible evidence and are inferential findings, vitiated on account of perversity of approach. Amplifying the said contention Sri Reddy would point out to the depositions of P.Ws, 8, 9 and 10, news reporters to submit that their evidence has weighed in the mind of the 1st respondent to conclude that the petitioners intentionally abstained from attending the meeting. Sri Reddy would rely upon the decision of the Supreme Court in the case of Laxmi Raj Shetty and Anr. v. State of Tamil Nadu, .
25. Sri Patil, learned Senior Counsel would seeks to sustain the findings of the 1st respondent as being well merited, not warranting interference at the hands of this Court. According to the learned Senior Counsel, the findings of the Election Tribunal on question of fact and law, involved in the dispute, touching upon the disqualification of the members cannot, in a writ proceedings, be assailed, except, on the ground that the Tribunal acted on no evidence or on legally inadmissible evidence and which is not supported by any evidence whatsoever. Learned Senior Counsel would place reliance on the decision of this Court in H.S. Devaraj and Ors. v. State Election Commissioner, Karnataka State, Bangalore and Ors., . There is considerable force in the contention advanced by Sri Reddy that the 1st respondent recorded his conclusions based on inadmissible evidence and such conclusions are inferential findings. P.W. 8 is one S.N. Nagaraju, a reporter for 'Prajavani' newspaper, P.W. 9-Somasekhar is a reporter of newspaper 'Mysore Mitra', while P.W. 10 is the reporter of 'Vijaya Patrike'. The depositions of P.Ws. 8 and 9 are to the effect that based on the statements made by the 1st petitioner, they published the news item that all the petitioners were safe, having taken up lodging at Kundapur and that they had not been kidnapped and further that they would boycott the meeting on 4-1-2002. Except for the oral say of P.Ws. 8 and 9, there is nothing on record to show or establish that such statement of facts were made by the petitioners to the said witnesses, What is strange is D.W. 1 that is the 1st petitioner, though cross-examined, nothing is elicited in the cross-examination as regards the alleged statements said to have been made to P.Ws. 8 and 9. The evidence of P.Ws. 8 and 9 was therefore inadmissible evidence. The decision or Supreme Court in Laxmi Raja's case, supra, is in the circumstances apposite. The Supreme Court held that the newspaper was not one of the documents referred to in Section 78(2) of the Indian Evidence Act, 1872 and that the statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence, in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The 1st petitioner examined himself as D.W. 1, but nothing is elicited in his evidence as regards admission of any statements allegedly made by him to P.Ws. 8 and 9. Therefore, the only conclusion that could be arrived at is that the reports made in the newspaper were inadmissible in evidence.
20. P.W. 10 in his deposition has spoken to the photographs taken by him on 6-1-2002 in which the petitioner and the elected President of Municipal Council are shown to have posed for the photograph, together, which was published in the newspaper. However, in the cross-examination of D.W. 1, the 1st petitioner, there is not even a suggestion that he is the very same person as shown in the photograph at Ex. P. 13. Assuming that the 1st petitioner posed, for a photograph, with the President of the Municipality, by itself and nothing more cannot lead to an inference that the intention to abstain from the meeting stood established.
27. The cumulative effect of the findings on the contentions advanced by the parties before the Deputy Commissioner, it is sufficient to conclude that there is absence of substantial legal evidence to prove the allegations set out in the complaint. The decision in H.S. Devaraj's case, supra, cannot come to the aid of the respondents as it was a case where the petitioners therein who were disqualified did not dispute the fact that they did not vote for the official candidate and it was not the case of the petitioners that the Tribunal had taken into consideration inadmissible evidence or that there was no evidence. In the present facts and circumstances of the case, the conclusions arrived at by the 1st respondent is based on inadmissible evidence and are also inferences drawn from such evidence. In the absence of positive evidence to establish the allegations of fact set out in the complaint, the Deputy Commissioner ought to have dismissed the complaint petition.
28. In conclusion, the order of the 1st respondent impugned in these petitions is unjustified, suffers from serious infirmities in law, not substantiated to be based on legal evidence and is vitiated on account of perversity of approach calling for a different conclusion and interference in the verdict.
In the result, the writ petitions are allowed. The order dated 29-3-2002 in case No. ELN(2) CR 56/2001-02 on the file of the Deputy Commissioner, Chamarajanagar District, Chamarajanagar, at Annexure-M is quashed and the complaint dated 15-1-2002 filed by the 3rd respondent stands dismissed.
Rule made absolute.