Karnataka High Court
H P Satish Kumar S/O.Puttaiah vs H.N. Chandrashekar on 8 February, 2012
Author: B.S.Patil
Bench: B.S.Patil
IN THE HIGH COURT OF KARNATAKA AT BANGALORE a
DATED THIS THE 87 DAY OF FEBRUARY, 2012 - .
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL: _
W.P.Nos. 22695-896/201i |
C/w W.P.23934/2021,
W.P.No. 23466/2011 (L3- BES)
IN W.P.Nos.22695- 696/201:
BETWEEN:
1.
H.P. Satish Kumar
S/o. Puttaiah,:
Aged about 34 years;
R/at No.1254, .
Sadashivanakeppatu,
Hunsur Town,.
Mysore istrict.
Municipal Councilor,
'Town Municipal Council,
~. Hunsur.-.
~ S/o. Chikkanna,
Aged about 35 years,
R/at 891/1,
Banni Street,
Hunsur Town,
_ _ Mysore District,
Municipal Councilor,
Town Municipal Council,
Hunsur. ... PETITIONERS
(By Sri. Jayakumar S. Patil, Sr. Counsel for
M/s. Sharath & Assts., Advs.)
1. H.N.Chandrashekar
S/o. Late Nanjegowda,
Aged about 48 years,
R/at No.1074,
Karigowdana Beeddi,
Hunsur,
Municipal Councilor.
2. Hazarath Jan,
S/o Mohammed Ameer,
Aged about 63 years, °.
R/at No.1822, °
Nizam Mohalla,
(Bazar road), Hunsur,
Municipal Councilor:
3. The Deputy Comm issioner,.
Mysore Distr? ch,
Mysore." es
A. The Chief Officer,
Town Municipal c Council,
Hunsur.' : .
{By Sri 'M. Keshava . Reddy, AGA for R3,
Sti HLB.Narayan, Adv. for R4,
RL & 2- - served & : unrepresented)
IN cipaageehjao1 1:
Paes, BETWEEN:
Smt. Prema Ramesh,
W/o H.C.Ramesh,
_ Aged about 37 years,
_ €hikkahosur,
~ Hunsur Taluk,
Presently Member of the
Town Municipal Council,
.. RESPONDENTS
Hunsur,
Mysore District.
(By Sri A.Nagarajappa, Adv.)
AND:
1. H.N.Chandrashekar
S/o. Late Nanjegowda,
Aged about 48 years,
R/at No.1074,
Karigowdana Beeddi,
Hunsur,
Municipal Councilor.
2. Hazarath Jan, 7
S/o Mohammed Ameer,
Aged about .63. ye ars,
R/at No.1822.,:
Nizam Mohalla.' os,
(Bazar road),. Hunsur, ,
Municipal . Couneilor. _
3. The Deputy Commissioner,
Mysore District, » mE
Mysore. «.
-4, 'Fhe Town Municipa! Council,
. Hunsur,..
Mysore District.
(By. Sti M. Keshava Reddy, AGA for R3,
Sri 1.B.Narayac, Adv. for R4,
. Sri T. Nanjuncaraju, Adv. for R1 & 2,)
IN W.P.No.23466/2011:
~ BETWEEN:
Sri K.P.Krishnachari
- S/o late Puttaswamychari,
Aged about 44 years,
Member, Hunsur TMC War No.7,
.. PETITIONER. ~
.. RESPONDENTS
R/o Behind Medara Beedi,
Kalkunike, Hunsur, OF
Mysore District. ... PETITIONER |: |
(By Sri B.S.Sachin, Adv. for Dharmashree Assts.)
AND: --
1. The Deputy Commissioner,
Mysore District,
Mysore.
2. H.N.Chandrashekar
S/o. Late Nanjegowda;._
Aged about 48 years,
Member, Hunsur TMC W lard No. 18,
R/o 1074, Karigowda.Beedi,
Hunsur, Mysore District. /
3. Hazarath Jen, me
S/o Mohammed Ameer.
Aged about 63 years.
R/at No. 1822,
Member, Hunsuir TMC Ward No. 18,
Nizam.Mchalia, ~
(Bazar road). Hunsur;.
Municipal C Councilor. ... RESPONDENTS
on (By Sri M. Kesheva Reddy, AGA for R1,
Sri T. Nanjundaraju, Adv. for R2 &3,)
"These writ petitions are filed under Articles 226 & 227 of
".. the Constitution of India, praying to quash/setting aside the
7 'orde >, dated 7.6.2011 passed by the Deputy Commissioner,
. Mysore District, and etc.
; These petitions coming on for preliminary hearing this
. day, the Court made the following:
ORDER
l. As common question arises for consideration: 1n all these:
writ petitions, they are heard together. and are disposed' of by. -
this common order.
2. Order dated 07.06.2011 _ Bass sed by. the: . Deputy Commissioner, Mysore District, Mysore, sisqualiving the petitioners is called in question.
3. All the petitioners were 'Councilors duly elected to the Town Municipal Count Hunsur, "hn Janata Dal (S) political party. Private 'respondents herein filed a complaint dated 01.03. 2008 under Section: AQ) (b) of the Karnataka Local OO' uthorities. (Prohibition of Defection) Act, 1987 (for short, 'the Ac seeking disqualification of the membership of the petitioners contending that petitioners had violated the whip me 'issued by the National President of Janata Dal (S) by voting
- : against the party candidate in the election of the President and the Vice President for the Town Municipal Council, Hunsur,
-. Which was held on 14.02.2008.
.
4. The Deputy Commissioner, having enquired into. the matter, has passed the impugned order declaring that the wit, petitioners had incurred disqualification for having violated the : :
whip. It is necessary to notice here that. during the cours se 'of the | - proceedings before the Deputy Commission er; the complainants .
-- private respondents herein namely Sri H.N.Chandrashekar and Sri Hazarath Jan had filed a memo stating that they were not interested in prosecutitig the caé e further as the matter has been settled and therefore. thie - complaint may be dismissed as not pressed. The Deputy Commissioner, 'having recorded a finding that there was violation: oft the whip, has proceeded to dismiss the recta ty mnpesing 60 costs of Rs.25,000/- on the complainants for wasting "the "precious time of the Deputy Commissioner in engaging! him to conduct an enquiry into the _ matter.
5. ~The principal contention urged by the learned Senior ", Counsel Sri Jayakumar S.Patil, Sri A.Nagarajappa and
-- 'Sri. B.S.Sachin is that the order passed by the Deputy ~ Commissioner disqualifying the petitioners suffers from patent . illegality inasmuch as the whip issued by the President of the party was not the result of any authorisation given by the An political party after taking a decision in that regard. It is their further contention that though a specific contention was taken in this regard, the Deputy Commissioner has glossed over the: -
matter. Strong reliance is placed by. them on "the Jadgnen rendered by the Apex Court in the case. of SADASHIV u. PATIL Vs. . VITHAL D.TEKE & OTHERS - AIR" 2000 sc 3044, They | further contend that this position in law has been further reiterated with reference to the provisian of the Actin in. the Division Bench judgment of this Court in W.A.No. £16/2008 disposed of on 19.12.2008. It. is ui ged t that the order passed by the Deputy Commissioner is lia ble to be set aside e only on this ground.
6. It is their next contention that the Deputy Commissioner could not have rejected the memo filed by the complainants _ seeking to withdraw the complaint as they were well within their. power "to terminate the proceedings by withdrawing the complaint and the conclusion arrived at to the contrary by the '. Deputy Commissioner is unsustainable in law. ' 7.) In the light of the twin legal contentions urged, I have
- examined the matter and heard the learned counsel appearing for the petitioners and the learned Additional Government ae Advocate. Learned counsel appearing for the private respondents is not present apparently because the: private respondents have chosen not to press the complaint and had filed a memo before the Deputy "Commissioner seeking :
withdrawn of the complaint.
8. In the case of Sadashiv 'HPatil sitailar provisions enacted in the Maharashira Local: Authority Members' Disqualification Act {20 of 1987) in Section 30) fits) 5) had fallen for consideration. 'the. Apex, Court in- 'paragraph 8 of the said judgment has observed : as andes:
"The disqualification with which we are concerned is contemplated by Clause: (b) of sub-section (1) of Section 3 of the Act. ; Voting. or 'abstaining from voting in any oe veeting. of the Municipal Council may entail oo disquaitfication, if:- 1) such voting or abstention is : - contrary to any direction issued by (a) the political party oF Aghaii or front to which he belongs, or (b) by any "person o¥ authority authorised by the political party or Aghadi or front in this behalf; 2) such voting or abstention is not accompanied by a prior permission of such political i party or Aghadi or front or person or authority having been obtained previously or condoned subsequently within 15 days from the date of such voting or abstention. Condoning is not permissible if such voting or abstention is not preceded by prior permission and is relatable to Ae election of any office, authority or committee under the relevant Municipal Law. Thus, power to issue a direction. ., popularly called a whip, in order to attract penalty of 7 disqualification has to be issued either by the pune belongs. The political party or Aghadi or front may Pact - collectively or may act through any person or "authority. . In the later case the perscn ° or a authority must be. authorised by the political party or Aghadi or frorit in. this behalf i.e., for issuing any direction (whip). If tire. political party, Aghadi or front. has, any. rules | or regulations whether known as such ora constitut ior Or called by any other name then, the auth orisation of - the person or authority -- can be, determined. by" looking into such document which would be available on the record of the Collector having been. filed. _ae accompanying the statement in Form I under Rule 3 (I), else the factum of such authorisation in this behalf having been given to the person or 'authority. issuing the direction or whip shall have to be' proved to the satisfaction of the Collector dealing with a reference under Section 7 read with Rules 6, Zand 8
9. it is not-in dispute, in the instant case that no material "was produced before the Deputy Commissioner to establish that "the President of the party, as per the . constitution/rules/ regulations/bye-laws governing the Janata "Dal (S) party was clothed with a power to issue whip without He 10 there being any need for a decision in this regard by a political party. It is also not in dispute that no document was produced to establish that there was a resolution passed by tine political. : party (JDS) authorising its President to-issue the whip to the | - petitioners. In the absence of any evidence in this regard. te cannot be held that the whip issued by the President of the party was in conformity with the. provisions "contained under Section 3(1)(b) of the Act: whieh is past 'materia with the provisions contained under the Maharashtra. Local Authority Members' Disqualification | Act. Therefore, tie decision rendered by the Apex Court i Sadashiv H.Patil's case applies to the facts of the present ease. :
10. In fact, as tightly contended by the learned counsel for "the _petitioners, a 'Division Bench of this Court in W.A.No.910/ 2008 disposed of 19.12.2008 has held by following the judgement in Sadashiv H.Patil's case that in the absence of <n any provisions in the Act or Regulation/ Rules of the political o party concerned authorising the President of the party to issue
-- a wiip, the President could be authorised only by a resolution a "passed by the party and if no such resolution was forthcoming and if the President of the party had not been examined before Ae 1] the Election Commissioner to substantiate the contention. that he was authorised by the party to issue a whip, then i could be held that there was no such authorisation to the President and : the whip issued was not legal. In fact. this conclusion reached by the Division Bench of this Court is clear from paragraphs-15_ & 16 of the judgment.
11. As already pointed on above, even in the instant case, the President of the. party has not appeared ard deposed in this regard before the | Ble ction Commiscioner nor any document in this regard showing 'sud ach 'authorisation in favour of the President of the party is pF oduced. Therefore, in the absence of any materia! including i in the form of Rules/Regulations of the party authorising the President of the party to issue the whip : : for and on behalf of the party, the inescapable conclusion is that i the order + passed by the Deputy Commissioner holding that the petitioners: Aad violated the whip issued by the political sen, Party cannot be sustained. As the matter is squarely covered a by. ihe decision of the Apex Court in Sadashiv H.Patil's case
-- and also the decision of the Division Bench of this Court passed
-- . ; in W.A.No.910/2008 in this regard, it is unnecessary to go into Ae 12 the other contentions urged by the learned counsel jor the petitioners.
Hence, these writ petitions are allowed and ihe impugned -
orders are set aside. Oe on Safe 'JUDGE PKS