Karnataka High Court
Smt. Sannahuligemma vs K. Drakshayini W/O. K Shrinivas on 23 November, 2017
Author: K.Somashekar
Bench: K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
W.P. NO. 106415/2017 (LB-ELE)
BETWEEN:
SMT. SANNAHULIGEMMA,
W/O DEVAPPA KAMADODDI,
AGE: 36 YEARS, OCC.: PRESIDENT,
COUNCILOR, AT & TQ: GANGAVATI-583 227,
DISTRICT: KOPPAL.
- PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI S.D. BABALADI, ADVOCATE)
AND:
1. K. DRAKSHAYINI W/O K. SHRINIVAS,
AGE: 44 YEARS, OCC: HOMEMAKER &
COUNCILOR, R/O PEERJADE STREET,
WARD NO. 27, VIJAYANAGAR COLONY,
AT & TQ: GANGAVATI-583 227,
DISTRICT: KOPPAL.
2. DEPUTY COMMISSIONER,
KOPPAL DISTRICT, KOPPAL-583 231.
- RESPONDENTS
(BY SRI RAVI HOSAMANI, AGA FOR R2,
SRI D.L.N. RAO, SENIOR COUNSEL FOR
SRI V.M. SHEELAVANT, ADVOCATE FOR R1)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 03.06.2017 PASSED BY THE
RESPONDENT NO.2, I.E., DEPUTY COMMISSIONER, KOPPAL, IN
PRAKARANA SANKHE: KAM: CHUNAVANE: 05-2016-17 DATED
14.06.2017 VIDE ANNEXURE-O & ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS ON 10.10.2017
AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner being aggrieved by the order passed by the respondent No.2-Deputy Commissioner, Koppal District, Koppal in Prakarana Sankhe:
Kam: Chunavane: 05/2016-17 dated 14.06.2017 vide Annexure-O. The petitioner filed nomination for the post of President of City Municipal Council (for short 'CMC') Gangavati and got elected, but on the complaint filed by the complainant she was disqualified by the respondent No.2- Deputy Commissioner, Koppal, to hold the post of Councilor of Gangavathi.3
2. The factual matrix of this petition are as under:
The respondent no.1 filed a complaint before the Deputy Commissioner, Koppal, alleging that the petitioner being the member / Councilor of Ward No.27 of Gangavati CMC, as a party candidate of Indian National Congress (for short 'INC'), Radha Basavaraj Aili being arrayed as respondent no.2 in the complaint, is not a party to the proceedings, is also a Councilor of Gangavati CMC from Ward No. 25. Election to the post of President and Vice President of Gangavati CMC was scheduled to be held on 10.03.2016. It was resolved that K.Drakshyini, being the complainant in the complaint / first respondent herein, was to be the official candidate of the INC.
One Shaikh Nabi Sab was also fielded as candidate of the party for the post of Vice-President. The District Congress President who issued whip to the eligible voters of the party to caste their votes accordingly and the issuance of notices relating to the whip was sent by RPAD on 09.03.2016 by City Block Congress, Gangavati, but the petitioner who refused to receive the notice of whip, as such, there was an endorsement 4 by the postal authorities. Therefore, the whip notice was affixed on the doors of the respondents. In violation of the whip, the petitioner who filed nomination for the post of President of CMC, Gangavati, the petitioner got elected as President of CMC. The petitioner has violated the whip inspite of being served along with Smt. Radha Basavaraj Aili.
As such, both are liable to be disqualified to hold the post of Councilor of Ward Nos. 27 and 25 respectively. Whereas the petitioner herein who filed objection in detail to the complaint/ petition under Rule 3(1)(b) of the Karnataka Local Authorities (Prohibition of Defection) Rules, 1987 (for short 'Rules'). Similarly, the member Smt. Radha Basavaraj Aili has also filed objection to the complaint/ petition.
Subsequently, the complainant/ first respondent who lead the evidence as PW1 and three witnesses have been examined as PWs.2 to 4 in order to establish their contention taken in the complaint that they got marked the documents as per Exs.P.1 to 28 and closed their evidence. Subsequently, petitioner herein got herself examined as RW1 and got 5 marked documents as per Exs.R1 to R3. Whereas Smt. Radha Basavaraj Aili, who also got examined herself as R.W.2. Subsequently, the respondent No.2 being the Deputy Commissioner of Koppal District, partly allowed the petition in its order dated 14.06.2017 and cancelled the membership of the petitioner to CMC, Gangavati and dismissed the petition of Smt. Radha Basavaraj Aili, are concerned. It is in which the impugned order passed by the Deputy Commissioner, Koppal, has been questioned under this writ petition.
3. The respondent No.1 in this petition has filed objection to the petition wherein it is contended that the petitioner and the respondent No.1 being the Councilors of Ward Nos.27 and 19 of CMC, Gangavati, respectively. As they being the elected members of the INC, election for the post of President and Vice President of CMC, Gangavati, was scheduled to be held on 10.03.2016 as wherein the petitioner and respondent No.1 contested for the post of President but the INC party has 6 decided the respondent no.1 would be the official candidate from the party and has been fielded. In respect of that, it was conveyed to the Councilors / members of the party on 08.03.2016 relating to the whip. The petitioner and another member, namely, Smt. Radha Basavaraj Aili, have been refused to take the notice of the whip and they went out from the meeting of the party. The notice relating to the whip has been sent to the petitioner and another member by RPAD on 09.03.2016 but the same was returned by postal authorities with the endorsement as "refused". Whereas the Deputy Commissioner, being the respondent No.2 in this petition did not proceed with the matters relating to the issue for disqualification of the petitioner but he has not decided as prescribed under Section 4(2) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short 'Act'). The enquiry in which it was conducted by the Deputy Commissioner, Koppal District, in which the respondent No.1 herein being the complainant was examined as P.W.1 and got marked documents as per Exs.P.1 to 31. Whereas, Exs.P.29 7 to 31 are intentionally not stated by the petitioner herein to suit her purposes. Whereas the petitioner herein examined as RW1 and got marked three documents as Exs.R1 to R3, the petitioner who has clearly stated that she was colluding with the other party members in the guise of secularism against the whip issued by the INC. The petitioner's husband was also a Councilor from the same Ward during the year 2003 and was also disqualified for defection during his membership period, which reached finality.
4. Whereas the Deputy Commissioner of Koppal District as per the enquiry initiated based upon the complaint filed by the complainant after giving opportunity to both the parties and passed the order disqualifying the petitioner as where the order passed by the Deputy Commissioner, Koppal, it was challenged under this writ petition is legal and as the order was passed by the Deputy Commissioner after due enquiry is thus seeking for dismissal of the petition in limine. The order passed by the Deputy Commissioner in its impugned order at 8 paragraph nos.8 and 9 does not appear to be perverse as where the Deputy Commissioner who passed the impugned order against the petitioner after considering the evidence has adduced to establish their case relating to the averments made in the complaint/ petition but the petitioner who has taken contention that the whip is not served upon her, is a total falsity as she has refused the notice sent through RPAD, has, in support of this contention in the statement of objections placed in AIR 1976 SC 869 (Puwada Venkateshwara Rao V/s Chidamana Venkata Ramana), as another decision in the case of Parimal V/s Veena @ Bharati reported in 2011 (5) KCCR SN 751 and also in the case reported in 2012 (1) KCCR 156, wherein the notice sent and returned with postal sharah "refused" as presumption raised which has to be rebutted by the person who denies it. PW2 is Block Congress President, Gangavati City. P.W.3 is the President, Congress Party Backward Cell and P.W.4 is the Municipal Councillor. They have deposed in their evidence clearly reveals that the meeting has been held and stated that 9 the petitioner has refused to receive the whip. The veracity of the said deposition is not dismantled in their cross- examination.
5. The averments made in paragraph no.13 it is as false. Whereas Ex.P.20 bears the endorsement and signature of the person who endorsed, i.e., the Postman. As the same is necessarily need not be in the knowledge of the other person. Whereas in paragraph nos.14 to 17 that the grounds urged in the aforesaid paragraphs are not applicable to the petitioner herein as wherein P.W.2 who has specifically stated that he has not called the meeting of the party members by giving a telephonic message and all were present. Whereas the testimony which was adduced is not dismantled in the cross- examination by the petitioner herein. All these grounds which are taken in the objection statement in detail by the respondent No.1. Whereas the petitioner herein and also her husband are in the habit of defection from the party to grab the power. If the order of the Deputy Commissioner, Koppal, 10 is interfered with, it is nothing but it will give scope to continue the said acts in violation of the aforesaid Act. For all these contentions which are taken by the learned counsel for the respondent no.1 herein and sought for dismissal of the writ petition with exemplary costs.
6. Learned senior counsel appearing for petitioner contends that the order passed by the respondent No.2 being the Deputy Commissioner appears to be perverse who has ignored the factum of there being absolutely no evidence to show that whip at Annexure K is served on the petitioner being the President of CMC, Gangavathi. He has ignored the admission of the respondent No.1 in her evidence that the petitioner was being present at the meeting and he has not produced any evidence. It has further ignored the admission of the respondent No.1 in her evidence even though in Gangavati she has no knowledge as to the letters posted on 09.03.2016 and when they were taken for distribution. That the respondent NO.2 being the Deputy Commissioner, being 11 the authority who has ignored all the evidence putforth by the respondent No.1 as wherein the petitioner was being present at the meeting and passed impugned order which is questioned under this writ petition. The Deputy Commissioner being the respondent No.2 has not properly appreciated the evidence on record and ought to have been held that there is no evidence to show that the remarks "refused" has been written by the Postman in Ex.P.20. Ex.P.20 does not bear any signature in respect of refusal for having served the notice of whip. For all these grounds the learned Senior Counsel for the petitioner is seeking for allowing the petition by quashing the order passed by the Deputy Commissioner, Koppal vide Annexure-"O" and consequently restore the Councilorship of the petitioner to Gangavati, CMC and so restoration of her Presidentship, Gangavati, CMC with retrospective effect.
In support of his contention the learned senior counsel for the petitioner has relied upon the following decisions: 12
1) (2000) 8 Supreme Court Cases 82 - Sadashiv H. Patil V. Vithal D. Teke; 2) Civil Appeal No. 5227/2017 dated 24.04.2017 - Dr. T.P. Senkumar, IPS V. Union of India & Ors. 3) LAWS (SC) 2002 4 129 dated 04.04.2002 - Chandra Prakash V. State of Uttar Pradesh. 4) N. Shivanna and Ors. Vs. The Deputy Commissioner and Ors. Dated 30.07.2004 of Karnataka High Court; 5) W.P. Nos. 11335-11336/2017 dated 27.04.2017 - Ms. Srimathi Banger & another Vs. President, DCC & another; 6) W.A. No.4300/2017 & W.A. No.4694/2017 dated 31.07.2017 - President, DCC Vs. Deputy Commissioner, Madikeri & Ors.' 7) W.P. Nos. 108244/2017 & 108839/2016 dated 29.06.2017 - Smt. Hemalata & anr. Vs. Deputy Commissioner Bagalkot & ors.
7. Learned senior counsel appearing for respondent No.1 has argued that, relating to issuance of whip and also the power of President, KPCC to authorize and delegate the General Secretary, KPCC, or the President, DCC, Koppal to issue whip to party members. Regarding these issues the order of the Deputy Commissioner, Koppal, being the respondent No.2 is questioned in this writ petition. On 08.03.2016 the General Secretary, KPCC, who communicated 13 the President, DCC, Koppal, regarding issuance of direction regarding the power to issue whip to the members of the party. The core contention is, issuance of whip at page no. 47 of the writ petition, it is a sub-delegation, service of which, it cannot be further sub-delegated, where the power of General Secretary, KPCC, to issue whip to the President, DCC. The resolution which is passed indicates that the President, KPCC, who authorized the General Secretary or the President, DCC to issue the whip. Whereas the General Secretary of the KPCC who informs the President, DCC, authorized by the President, KPCC to issue whip to the party members. Whereas the petitioner herein (respondent No.1 in the complaint) who has filed the nomination as a rebel candidate, in the whip proposed by the Councilors not belonged to the Congress Party. The same was notified after 12 noon, however, the filing of nomination was between 10 am and 12 noon, and the time was over but the aforesaid candidate has not withdrawn her candidature. Even after coming to know the complaint filed as official candidate indicates at 14 Annexure-A but in her cross-examination she has specifically admitted that she was not asked by anyone to contest and she contested on her own, the Congress party did not ask her to contest by two JDS councilors proposed her candidature in filing her nomination for the post of President scheduled to be held, but in violation of the party whip she has not voted for Kamali Bai. Therefore, keeping in admission of these evidence in her cross-examination the law laid down by the Division Bench in the case of Smt. Geetha Lakshmi Vs. The Indian National Congress (I) and the Chief Officer, Town Panchayat in W.A. No. 16699/2011 dated 07.12.2011. It clearly indicates that the writ petitioner has incurred disqualification u/S 3(1)(a) of the Act. Whereas the facts in the present case is relating to the disqualification of the order passed by the Deputy Commissioner, being the respondent No.2, are identical to the facts in the aforesaid case.
8. Though the whip is not valid, yet based on findings therein, the petitioner who contested against the party 15 candidate with the help of two JDS Members. Therefore, it amounts to voluntary giving up of the party and vote against the party candidates. Whereas the application of Sec. 3(1)(a) of the Act to the facts of the case makes it clear that the petitioner has incurred disqualification u/S 3(1)(a) of the Act. Even after the scrutiny when the names of the contesting candidates are mentioned relating to the candidature has been fielded for the post of President, the petitioner did not withdrawn her nomination. The nomination was proposed by the two JDS Members and voted against the party candidates. It is patently clearly from the materials placed on record. Therefore, it is held that this question would dehorse the issue relating to the validity of the whip and in violation of said whip which has been issued.
9. The Hon'ble Supreme Court in the cases reported in AIR 1994 SC 1558 and (2004) 8 SCC 747, held that such a conduct would amount to voluntarily giving up the membership of political party. Whereas in the case reported 16 in AIR 1994 SC 1558 the Hon'ble Supreme Court has held that, even a formal resignation is not required, if the conduct is clear. The averments attract Sec. 3(1)(a) of the Act, namely, contesting against the party candidate with the support of two JDS candidates and voting against the party candidate as per the whip issued irrespective of the fact that whether it is validly issued coupled with the unequivocal terms and categorical admission has the same effect and it is a case of applying the law as declared in the case of Smt. Geetha Lakshmi, stated supra.
10. In support of her contention as the grounds which are urged by the learned counsel for the respondent no.1 that he has placed reliance on AIR 1994 SC 1558 (Raju S Naik V. Union of India & Ors.) at paragraph no. 11 it reads as follows:
"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 (1990) on the ground of defection under Paragraph 17 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 with "resignation" and have a wider connotation. A person may 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."
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In (2004) 8 SCC 747 (Dr. Mahachandra Prasad Singh Vs. Chairman & Ors.) the Hon'ble Supreme Court at paragraph nos.9 and 11 has held as under:
9. The question as to when a member of a House belonging to a political party can be said to have given up his membership of such political party has been considered in two later 18 decisions of this Court. In Ravi S. Naik v. Union of India 1994 (Supp.) 2 SCC 641 two M.L.A.s, Bandekar and Chopdekar, had been elected on the ticket of MGP party, but they accompanied the leader of Congress (I) Legislative Party when he met the Governor to show that he had the support of 20 MLAs. On this conduct alone, the Speaker held that they had given up membership of the MGP party and disqualified them for being a member of the House. The decision of the Speaker under which he held that the two MLAs shall be disqualified for being a member of the House under paragraph 2(1)(a) of the Schedule was upheld by this Court. The scope and amplitude of paragraph 2(1)(a) was explained as under in para 11 of the reports :
"11. 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 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".
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11. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of the Indian National Congress but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct.
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11. No elaborate enquiry of an application of evidence is required has in unequivocal admission when considered and the law it has interpreted in Geetha Lakshmi case, it leads to irresistible conclusion that the petitioner has incurred disqualification u/S 3(1)(a) of the Anti Defection Act of 1988. Whereas there are two stages of judicial pronouncement interpreting from same three documents holding that there is a proper issuance of whip and another pronouncement to show it amounts to sub-delegation as regarding 3(1)(b) of the 20 Act. It is relevant to state that the aforesaid Sec. 3(1)(b) of the Act for the purpose of interpretation relating to scope and object of the Section in respect of the disqualification of the member as the order passed by the Deputy Commissioner, respondent No.2, who being the authority to pass the order, based upon the evidence and also the documents produced. So also the averments made in the complaint filed by the complainant being the member. Whereas the document at Annexure-H dated 10.01.2004 of KPCC resolution no. 3 which authorizes the President, KPCC to issue whip to vote or abstain from voting or intentionally remain absent from meeting of local authorities. The President of KPCC is authorized to delegate the power to issue whip to the General Secretary, KPCC or the President DCC or the President Block Congress Committee, as the case may be. It is the first document at Annexure-H.
12. On 03.03.2016 the President, KPCC, as per the KPCC resolution, directed the General Secretary, KPCC, to authorize 21 the DCC, Koppal to issue whip to the party members to vote in favour of the party candidate in the election of President and Vice President of CMC, Gangavati. In W.P. No. 21381 & connected matters, this Court had held that, all the three documents would not amount to sub delegation and the whip is validly issued. This contention is taken by the learned counsel for the respondent No.1 during the course of his arguments in support of the grounds urged in respect of an order passed by the Deputy Commissioner, being the authority, under the Act. Whereas the said judgment is confirmed in Writ Appeal Nos. 843-847/2016 & connected matters by the Division Bench of this Court. Another order of this Court in W.P. Nos.11335-11336/2017 wherein the learned Single Judge of this Court has taken the view that there is sub delegation by General Secretary, KPCC and the same is not properly noticed by the learned Judge, who passed the order in W.P. Nos.21381 & 21463-467/2015 and confirmed in appeal. This order, i.e., order in W.P. Nos.11335-11336/2017, is again confirmed in the writ 22 appeal. In this aspect is concerned, the counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case reported in 2008 (10) SCC 1, wherein it is held that propriety of judicial discipline requires and the judgment of a co-ordinate bench cannot be held to be wrong and a different opinion cannot be expressed but which referred it to a larger bench. It is specifically stated that pronouncement made in W.P. No.21381 & 21463-467/2015 may be distinguished if the documents are understood in proper perspective.
13. The President, KPCC, in no uncertain terms says regarding the power to issue whip is given to the President, KPCC, to the President, DCC by the General Secretary, KPCC. However, the said document clearly shows that the person who has to issue the whip is the President, KPCC and the General Secretary, KPCC is authorized to communicate the said delegation and question of sub-delegation does not arise at all.
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14. The pronouncement made in W.P. Nos.11335- 11336/2017 does not amount to a precedent to follow, as it is impermissible to ignore the order made in W.P. No. 21481 & 21463-467/2015. When the delegator, i.e., President, KPCC, who names the delegate to issue whip and instead of communication directly authorized the General Secretary, KPCC, i.e., the organization, to inform or communicate to delegate the question of sub delegation does not arise. To avoid the pronouncement in the aforesaid writ petition and in such a situation the Hon'ble Supreme Court has laid down that the second judgment of a co-ordinate bench taking a contra view becomes obiter.
15. For all the above contentions taken by the learned senior counsel appearing for the respondent No.1 and seeking for dismissal of the petition filed by the petitioner by questioning the disqualification order passed by the Deputy Commissioner for violation of issuance of whip. 24
16. Whereas the learned Addl. Govt. Advocate for respondent No.2 has taken contention relating to the scope and object of Defection Act, 1987. Though, the issuance of whip by the President, KPCC and also delegating the power to President, DCC of Koppal, it is in the letter and spirit and the same has been served upon the petitioner, being the member who is a rebel candidate, inspite of issue of whip casting vote against the party candidate fielded for the post of President and Vice President.
17. The Karnataka Local Authorities (Prohibition of Defection) Act, 1987, is brought to maintain discipline in the democratic set up, being the elected member to follow the guidelines and the resolution which is passed by the organization of the KPCC and in turn to the DCC President. Even though by the General Secretary and the same has been appreciated by the Deputy Commissioner, Koppal, who has passed the order dated 14.06.2017 vide Annexure-"O" as the disqualification of the membership of the petitioner and also 25 to the Presidentship of the CMC, Gangavati. As he supports the order passed by the Deputy Commissioner, Koppal and the same shall be maintained by dismissing the writ petition filed by the petitioners.
18. In this petition the order passed by the respondent No.2-Deputy Commissioner, Koppal District, Koppal, is called in question on various grounds urged before this Court. The main grounds urged in this petition is that there was no authority to the President, DCC, Koppal, to serve whip on the petitioner as the said power vests with the Congress Party. Therefore, the issuance of whip itself is invalid. Further, the alleged whip is also not served on the petitioner. Hence, the Act does not apply to the case on hand. Therefore, keeping in view the grounds which are urged by the learned Senior Counsel for the petitioner as well as learned Senior Counsel for the respondents respectively including the learned AGA, it is just and necessary to have a brief note with regard to the enquiry which is initiated before the Deputy Commissioner 26 and also passing the impugned order which is questioned in this writ petition.
19. It is seen that, after issuance of notice of whip to the petitioners herein on the complaint filed by the complainant, case in No. Prakarana Sankhe: Kum: Chunavane: 05/2016- 17 dated 14.06.2017 whereas respondent No.2-Deputy Commissioner, Koppal District, who has provided an opportunity to both the parties and also given an opportunity to the petitioner herein to file objection and thereafter recording evidence of witnesses produced by the complainant as Smt. K. Drakshyani wife of Srinivas, Member, CMC, Gangavathi. On the part of the complainant, P.W.1 has been examined, P.W.2 Hanumanthappa Nayak, P.W.3 Hanumantharayappa son of Eranna, P.W.4 Sri Ramakrishna son of E. Krishna, have been examined in order to establish the allegations made in the complaint against the petitioners herein. In order to substantiate their allegations made in the complaint apart from the evidence as put forth that Ex.P.1 to 27 31 have been got marked. On the part of the respondents, in the complaint proceedings No.5/2016-17 initiated before the respondent No.2-Deputy Commissioner, that R.W.1 and R.W.2 have been examined in order to establish their case relating to an objection which has been filed in detail and also got marked Ex.R.1 show cause notice dated 16.05.2017 issued by N.S. Bosaraju, General Secretary, KPCC, Bengaluru. Ex.R.2 is the reply to the notice dated 16.05.2017 by Smt. Sanna Huligemma, President, CMC, Gangavati. Ex.R.3 is the receipt for having issued postal cover containing whip notice through courier service. Subsequent to these evidence which was put forth by the complainant through Smt. K. Drakshyani and so also the evidence of R1 and R2 that the respondent No.2-Deputy Commissioner, who heard the arguments in detail. The respondent No.2 held that the whip issued by the President, DCC is valid and it is duly served upon the petitioners herein and inspite of whip notice that they have casted their votes against the official candidates fielded for the post of President 28 and Vice President and thereby they are liable for disqualification u/S 3 of the aforesaid Act. This Court has to examine in the light of the above said facts and circumstances as to whether the order of the Deputy Commissioner, Koppal, is in accordance with law and the same is sustainable either in law or on facts for disqualification of the petitioner herein as she being the elected member of the CMC, Gangavati.
20. Whereas the learned counsel appearing for the petitioner strenuously contended that it is the Congress Party represented by its State President, competent to issue any whip, are also having an authority, can not be delegated to any of the subordinates even to the President, DCC of Koppal, in order to serve whip notice for a particular person. Whereas in this case the President, DCC who has been required to be proved in order to authorize the issuance of whip and thereby the alleged whip said to have been duly served upon the petitioner. It is further contended that there is no service of 29 the whip notice duly in accordance with law and there is no proper service upon the petitioners herein regarding the whip notice and the same can be noticed in the evidence of P.W.1- Smt. Drakshyani, being the complainant and so also being the CMC member of Gangavathi, as she being the author for the allegation made against the petitioner herein, for violation of the conditions of the whip issued by the competent authority of the KPCC.
21. P.W.2-Hanumanthappa Nayaka being the President of Block Congress Committee, Gangavathi, has in his evidence was also noticed relating to the service of whip notice to the petitioner herein as their evidence having to establish their case relating to the complaint proceedings, it was initiated against the petitioner before the respondent No.2-Deputy Commissioner, Koppal, relating to the violation of the conditions issued by the competent authority for casting their vote to the official candidate fielded for the post of President and Vice President of CMC, Gangavathi.
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22. Ex.P.30 is the copy of the whip issued by Dr.G.Parameshwar, President, KPCC, delegated his power to the General Secretary Sri N.S. Bosaraju, for having issued the whip relating to casting of the vote for their official candidates to be fielded to the post of President and Vice President. Ex.P.31 is the letter issued by N.S. Bosaraju, General Secretary, KPCC, authorizing the power of issue of whip to the President, DCC, Koppal-Basavaraj K. Hitnal.
23. As the learned counsel appearing for the petitioner has strenuously contended that, keeping in view the tenor of Exs.P.30 and 31 and also the evidence of P.W.1 and 2 relating to the disqualification sought against the petitioner herein- Smt. Sannahuligemma, for having casted the vote against the conditions of the whip issued by the competent authority and disqualified u/S 3(1)(b) of the Act. But, there is no proper service of the said whip notice served on the petitioner herein and the same could be seen in their evidence itself to establish their case for allegations made in the complaint field 31 by Smt. K. Drakshyani, being the member of the CMC, Gangavati.
At this stage, it is relevant to refer Sec. 3(1)(b) of the Act, which reads thus:
3. Disqualification on the ground of defection - (1) subject to the provisions of Sections 3-A, 3-B and 4, a Councillor or a member, belonging to any political party, shall be disqualified for being such Councillor or member-
(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 authorized 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.
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24. Sec. 3(1)(b) of the Act connotes that, if the Councilor from the party votes or abstains from voting in, or 32 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 authorized 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.
25. In this petition the core issue is relating to issuance of whip and its service to the particular candidate to follow direction regarding casting of vote to the official candidates. Therefore, on meticulous reading of the above said provisions it shows that either the political party has to issue a direction official whip or it can also authorize any person or authority to issue such whip to the members of the party. Therefore, keeping in view Sec. 3(b) of the Act, the political party means a National Party or a State Party in the State of Karnataka, under the election symbols. Therefore, for all practical 33 purposes relating to issues involved in the petition, the Indian National Congress is the Party and the President of the State Congress Party is the head of the party so far as the State of Karnataka is concerned, with election symbol. Therefore, it goes without saying anything that the whip should be issued by the President, KPCC himself or can authorize any person to issue such a whip in accordance with law, but the proof of such issuance of authority to some other person by the said person has to be established without any clouds of doubt.
26. In this backdrop it is relevant to state here a decision of this Court reported in 2016 (1) KLJ 403 between Smt. Anitha H. Basavaraj and Others Vs. Karnataka State Election Commission, Bengaluru and another. Almost similar facts and law are involved and considered wherein this Court has held as under:
"Karnataka Local Authorities (Prohibition of Defection) Act, 1987, Section 3(1)(a) and 3(1)(b)-Disqualification on ground of defection-Elections to Chitradurga Zilla Panchayat-Allegation 34 of flouting of whip issued by President of DCC-Issue of authorization to issue whip-Held, though framed as first issue, the Commissioner, before disqualifying petitioners, failed to enquire about authorization issued by President, KPCC, in favour of President, KPCC, DCC-In the absence of such authorization-Entire case falls apart-Most crucial document is conspicuously missing from evidence-Therefore, it cannot be held that President of DCC was duly authorized to issue whip- impugned order of Commissioner-Not justified, set aside."
27. Whereas keeping in view the legal aspect as well as the factual aspect relating to the impugned order passed by the respondent NO.2-Deputy Commissioner, Koppal District, Koppal, which is questioned under this petition. As discussed by this Court it is clear that the issuance of whip by the competent authority in a party has to be established without any clouds of doubt to the Court. It is further relevant to note here a decision of the Hon'ble Supreme Court in AIR 2000 SC 3044 between Sadashiv H. Patil V. Vitthal D. Teke and Others wherein the apex Court at paragraph no. 13 held as under:
35
"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."
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28. In view of the above, it is crystal clear that the consequences of disqualification held against the elected members will have a serious impact on the future of a politician and it will have an evil effect throughout their life and throughout their political career apart from the difficulties to the people of such constituencies. Therefore, a strong proof is required with regard to the issuance of whip 36 and violation of the same by putting forth the fortified evidence in order to establish the allegations made in the complaint in a proceedings it has been initiated before the Deputy Commissioner, being the competent authority for holding disqualification u/S 3(1)(b) of the Act. Therefore, the apex Court has held, a rigorous compliance with regard to the provisions of law is required to be done.
29. In the instant petition it is relevant to state that, though the Evidence Act is not strictly applicable to the proceedings initiated before the Deputy Commissioner being the competent authority, for having disqualification of an elected member as per Sec. 3(1)(b) of the Act, but nevertheless the principles of natural justice demanded that a heresay evidence cannot be easily admissible before the Court of law or any authority. Therefore, it is said that, according to the tenor of law that the hearsay evidence is no evidence before the Court. Of course the hearsay evidence can also be established if it is arising out of the same transaction if it needs to be looked into and so also appreciation of evidence 37 which is put forth by the party to initiate the proceedings it is on the filing of the complaint in nature if a person who has actually heard the fact or a fact in issue or a relevant fact that the said person has to be examined or the person who actually heard or seen the person who issued such a direction. But, in the instant petition, that the petitioner, who has been issued the whip in the form of a direction, is required to be complied such as the President, KPCC and so also the General Secretary of the KPCC as they have not issued directly the whip as according to the tenor at Ex.P.30 and Ex.P.31, that these important persons have not been examined to establish the tenor of Ex.P.30 and 31 which was issued by them relating to the power having by them and also for delegating their power. Therefore, such a direction or the whip in that form has been issued by them duly proved which is acceptable under any law as where the complainant who has initiated the proceedings by filing of a complaint making allegations against the elected members being the petitioner in this petition by producing concrete evidence. 38
30. At this stage itself it is relevant to extract Article XXVII(b) of the Constitution of INC, with regard to delegation of power:
"Article XXVII (b) - A Committee may delegate any of its power to a smaller Committee or an individual."
31. It is also relevant to extract Article XIX(c) relating to Working Committee of the Constitution of the INC, which reads thus:
"The working Committee shall be the highest executive authority of the Congress and shall have the power to carry out the policies and programmes laid down by the congress and by the AICC and shall be responsible to the AICC. It shall be the final authority in all matters regarding interpretation and application of the provisions of this Constitution."
32. If the aforesaid Articles of the INC are read meticulously by plain interpretation and understanding of the same, it gives meaning of whatever breach of discipline is occurred by 39 any member of the Congress Party subordinate to it, then only the Executive Committee can take action against the Committee subordinate to it and members of the DCC and all its Subordinate Committee as per Rule 1(c) which reads thus:
"The Executive of a DCC can take action only against Committees subordinate to it and members of the DCC and of its subordinate Committees provided that the DCC can not take such action against a person who is a delegate or a member of a Legislature. In such cases it can only make recommendations to the competent authority for taking disciplinary action."
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33. Whereas the specific provision u/S 3(1)(b) of the Act which only authorizes a party or any person or that party authorized by the party to issue direction or a whip by interpreting this rule. At no stretch of imagination it can be said that the President, DCC has got any independent right in order to issue any whip to the members of the Congress party, particularly the petitioners herein. As where the petitioner has been challenging the impugned order passed by 40 the respondent No.2-Deputy Commissioner, Koppal, for having held disqualification of the membership as keeping in view Sec. 3(1)(b) of the Act.
34. Whereas at the cursory glance of the evidence of P.W.1- Smt. K. Drakshayini, being the elected member of the CMC, Gangavati and so also the official candidate fielded for the post of Adhyaksha and also the fact that she filed the complaint against the petitioner herein making allegations which is reflected from the complaint/ petition itself. P.W.2- Hanumanthappa Nayak is the President of Block Congress Committee, Gangavati town unit, Gangavati. As in her evidence it refeals that she was also contested in the election for the CMC, Gangavati, as similarly, the petitioner herein Smt.Sannahuligemma and Radha Aili, were also the candidates for the CMC election, as all of them being the Congress party candidates. That in all 9 candidates were being elected as members in the election of the CMC, Gangavati. In all 30 members elected for CMC, Gangavati 41 and amongst them 9 members belong to the Congress Party. The petitioner herein was also nominated and fielded as an official candidate to the post of President and then one Sheikh Nabisab of JDS party being the candidate fielded for the post of Vice President. She did not produce any documents relating to the post of Adhyaksha and Upadhayska in CMC, Gangavati as on their party in Gangavati being held a meeting relating to fielding of their candidates and she does not know about any documents which were produced and subsequently stated that she did not produce any documents to that effect.
35. So far as the petitioner-Sannahuligemma is concerned, regarding the service of whip notice, it does not bear her signature as well as date. But, in further the witness volunteered that the said Sannahuligemma being the member who was present in the meeting but she has went out from the meeting and could not receive the whip notice sent through RPAD for having served through RPAD. Whether the whip notice sent through RPAD and she does not know when 42 it was disbursed from the post office and she does not know about this aspect. That Sannahuligemma had secured more votes rather than Smt. Drakshayini and being elected as President in the election declared.
36. Whereas in her cross-examination she does not know whether any mahazar has been held referring as Ex.P.15 and 16 has been affixed relating to the whip notice on the house of the opponents. Therefore, the evidence relating to this, P.W.1-Smt. Drakshyini being an official candidate for the Congress Party have been fielded for the post of Adhyaksha of CMC, Gangavathi. As contrary to the allegations made in the complaint filed by her against the petitioner Sannahuligemma as wherein the proceedings which has been initiated and enquiry has been conducted by the respondent No.2-Deputy Commissioner, Koppal. But, it appears to be clouded with discrepancies and further the discrepancies with respect of Exs.P.30 and P.31 relating to the whip it has been issued by the President, KPCC and also delegation of power relating to 43 the whip by the General Secretary-Sri N.S. Bosaraju in turn delegation of power to Basavaraj K. Hitnal, President of Koppal, DCC. Therefore, the impugned order passed by the respondent No.2-Deputy Commissioner, Koppal, disqualifying the petitioner being the member of CMC, Gangavati, u/S 3(1)(b) of the Act is not sustainable either in law or on facts. This contention of the learned senior counsel appearing for the petitioner during the course of his arguments and also placed reliance which is stated supra is acceptable.
37. Therefore, keeping in view of the aforesaid case as referring Anitha's case and considering the facts and law involved in this petition by initiating complaint proceedings against the petitioner on the filing of the complaint, made an allegation that the whip issued by the President, DCC, relating to the delegation of power and also sub delegation is not with a proper and correct authority. Therefore, the impugned order passed by the respondent No.2-Deputy Commissioner, Koppal District, Koppal, is based upon the 44 complaint proceedings against the petitioner herein being the elected member is not justified in accepting the competency of the President, DCC to issue whip as it is a tenor at Ex.P.30 and 31 and also on that ground disqualifying the petitioners herein being the elected member of the CMC, Gangavathi when the issuance of whip itself is not in accordance with law, it is held that the impugned order is found to be unjustified.
38. But, the issuance of whip and service of notice of whip to the elected members, i.e., petitioner herein, is found to be camouflage, such as clouds of doubts, as wherein these petitioners being the elected members of CMC, Gangavati, but the issuance of notice and its due service against them found to be surrounded with clouds of doubt and the same could be seen in the impugned order passed by the respondent No.1/ Deputy Commissioner, Koppal, but the voters of the concerned ward/ constituency ofGangavati, CMC, as voters have elected their members by casting vote for the welfare of 45 the society in that particular constituency and also to the welfare of the voters being casting their voters be elected as their representatives. Therefore, for the aforesaid reasons and in the peculiar circumstances of the case, I am of the opinion that the impugned order passed by the respondent No.2-Deputy Commissioner disqualifying the petitioner herein is not sustainable in law and also on facts. Therefore, in view of the above said facts and circumstances of the case discussed in detail relating to the evidence of P.Ws.1 to 4 and got marked documents as per Ex.P.1 to 31 relating to establishing their case on the complaint initiated against the petitioner herein before the respondent No.2-Deputy Commissioner, Koppal, and so also the evidence of R.W.1 and 2 and also the documents as per Exs.R1 to R3 got marked in establishing their case relating to the objection in detail which is filed by them as discussed in detail supra, I am of the opinion, that the order of the respondent No.2-Deputy Commissioner, Koppal, is not sustainable in law and on facts, which can be viewed from any angle and so also that the 46 order of the Deputy Commissioner, disqualifying the petitioner being the elected member, without considering meticulously the evidence putforth by the complainant as well as the respondents respectively. Hence, the order passed by the respondent No.2- Deputy Commissioner, Koppal, is liable to be quashed. Accordingly, I pass the following order.
ORDER Writ Petition filed by the petitioner is allowed. The order passed by the respondent No.2-Deputy Commissioner, Koppal District, Koppal in Prakarana Sankhe: Kam: Chunavane:
05/2016-17 dated 14.06.2017 vide Annexure-O, is hereby quashed.
Registry shall be directed to return the original records of the case to the concerned, forthwith.
SD/-
JUDGE bvv