Karnataka High Court
Sri K M Mune Gowda vs State Of Karnataka on 21 December, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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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)
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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 -3- NC: 2023:KHC:46815 WP No. 28873 of 2023 (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:
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NC: 2023:KHC:46815 WP No. 28873 of 2023 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 -5- NC: 2023:KHC:46815 WP No. 28873 of 2023 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 -6- NC: 2023:KHC:46815 WP No. 28873 of 2023 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 -7- NC: 2023:KHC:46815 WP No. 28873 of 2023 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 -8- NC: 2023:KHC:46815 WP No. 28873 of 2023 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 -9- NC: 2023:KHC:46815 WP No. 28873 of 2023 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.
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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
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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",
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NC: 2023:KHC:46815 WP No. 28873 of 2023 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,
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NC: 2023:KHC:46815 WP No. 28873 of 2023 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
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NC: 2023:KHC:46815 WP No. 28873 of 2023 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 List No.: 1 Sl No.: 61