Karnataka High Court
Shri. Anil Hosamani S/O H Kottreshappa vs The Deputy Commissioner & 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. NOS. 105246-105263/2017 (LB-ELE)
BETWEEN:
1. SHRI ANIL HOSAMANI,
S/O H. KOTTRESHAPPA,
AGE: 34 YEARS, OCC.: AGRICULTURE,
R/O URAMMANABAYALU, KOTTUR,
TQ: KUDLIGI, DIST: BALLARI.
2. SMT. T. HEMAVATHI,
W/O B. NAGARAJA CARI,
AGE: 30 YEARS, OCC.:
R/O URAMMANABAYALU, KOTTUR,
TQ: KUDLIGI, DIST: BALLARI.
3. SMT. K. SUMA MANJUNATH GOWDA,
W/O K. MANJUNATHGOUDA,
AGE: 45 YEARS, OCC.: AGRICULTURE,
R/O NEAR VEERABHADRESHWARA TEMPLE,
KOTE KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
4. SMT. ANUSUYAMMA W/O VENKATESH,
AGE: 38 YEARS, OCC.:
R/O WARD NO. 3, KELAGERI,
TQ: KUDLIGI, DIST: BALLARI.
5. SMT. K. SUMAKKA DURUGUPPA,
W/O DURUGAPPA, AGE: 36 YEARS, OCC.:
R/O WARD NO. 3, DOOR NO. 74,
RAJIVNAGAR, KOTTUR, TQ: KUDLIGI,
DIST: BALLARI.
2
6. SHRI S. GURUSHANTAPPA,
S/O S. DODDAVEERAPPA,
AGE: 52 YEARS, OCC.: AGRICULTURE,
R/O S. SAGAR SANGAM, JAVALI CIRCLE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
7. SHRI PRABHUDEVA S/O P. GOVINDA RAO,
AGE: 48 YEARS, OCC.: AGRICULTURE,
R/O NEAR SHRI VITTHAL TEMPLE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
8. SMT. S. ASHA BEGUM,
W/O NABEESAB P. MUDUKANAKATTI,
AGE: 30 YEARS, OCC.:
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
9. SHRI KOTTRAPPA S/O MAYAMMA,
AGE: 58 YEARS, OCC.: AGRICULTURE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
- PETITIONERS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI MAHANTESH C. KOTTURSHETTAR, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
& DISTRICT ELECTION OFFICER,
BALLARI, DIST: BALLARI.
2. THE TOWN PANCHAYAT, KOTTUR,
R/BY SECRETARY/CEO,
KOTTUR, DIST: BALLARI.
3. SHRI B.S. VEERESH,
S/O B.S. VEERABHADRAPPA,
AGE; MAJOR, OCC.: AGRICULTURE,
R/O RENUKA TALKIES ROAD, KOTTUR,
TQ: KUDLIGI, DIST: BALLARI.
3
4. SHRI K.M. KOTTRAIAH,
S/O LATE MARIKOTTRAPPA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O NEAR AKKAMAHADEVE TEMPLE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
5. SHRI T. MANJUNATH T S/O T. KOTRAPPA,
AGE: MAJOR, OCC.: AGRICULTURE,
R/O NEAR BANASHANKARI TEMPLE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
6. SHRI SHIVANANDA BHAVIKATTI,
S/O BASAPPA, AGE: MAJOR,
OCC.: AGRICULTURE,
R/O NEAR RAMALINGESHWAR TEMPLE,
KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
7. SMT. HALAPPA W/O SHIVAKUMARA GOWDA,
AGE: MAJOR, OCC.: AGRICULTURE,
R/O RENUKA EXTENSION,
KOTTUR, TQ: KUDLIGI,
DIST: BALLARI.
8. SHRI B.V. SHIVANNA @ SHIVAYOGI,
S/O B.V. MALLIKARJUNAPPA,
AGED ABOUT 55 YEARS, PRESIDENT OF
BALLARI RURAL DISTRICT COMMITTEE,
OFFICE AT BANNIKAL,
TQ: HAGARIBOMMANAHALLI,
BALLARI DIST, BALLARI.
- RESPONDENTS
(BY SRI RAVI HOSAMANI, AGA FOR R1,
SRI D.L.N. RAO, SENIOR COUNSEL FOR
SRI JAGADISH PATIL, ADVOCATE FOR R5,
SRI DINESH M. KULKARNI, ADVOCATE FOR R8,
SRI SHIVARAJ PATIL, ADVOCATE FOR R3, R4 & R6,
RESPONDENTS 2 AND 7 ARE SERVED)
4
THESE WRIT PETITIONS ARE 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.1, I.E., DEPUTY COMMISSIONER, IN APPEAL
NO. ELN 15/2016-17 AND APPEAL NO. ELN 22/2016-17 VIDE
ANNEXURE-G & ETC.
THESE WRIT PETITIONS 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
These writ petitions are filed by the petitioners seeking quashment of the disqualification order passed by the first respondent-Deputy Commissioner Cum District Election Officer, Ballari District, Ballari, in Appeal No. ELN 15/2016- 17 and Appeal No. ELN 22/2016-17 dated 03.06.2017.
2. I have heard the arguments of the learned Senior Counsel appearing on behalf of the petitioners so also the learned Senior Counsel appearing for the respondents 3 to 6 and 8 and also the arguments of the learned Additional Government Advocate appearing for respondent No.1. Respondents 2 and 7 though served remained unrepresented. 5
3. The factual matrix of these writ petitions which emanate from the records are that, the petitioners 1 to 9 and respondents 3 to 7 are the elected members of Kottur Town Panchayat. The election of the President and Vice President of the aforesaid Kottur Town Panchayat was scheduled to be held on 07.05.2016. Accordingly, the President of Ballari Rural District Congress Committee (for short 'BRDCC') issued whip on 30.04.2016 relating to the aforesaid elections scheduled to be held on 07.05.2016 to vote in favour of the party candidates. However, the petitioners herein voted to the candidates who are not party candidates. Whereas the respondents 3 to 7 in these writ petitions have filed election disputes under the provisions of The Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short 'Act'), such as an application filed u/S 4 of the Act. Subsequent to receipt of the notices relating to the aforesaid election, dispute in Appeal No. ELN 15/2016-17 was raised. The petitioners herein have filed their objections by raising a technical objection in respect of the dispute under the 'Act' 6 and prayed for dismissal of the election petitions. In order to overcome the defect in the election petition filed by the respondents 3 to 7 herein, the President, BRDCC, i.e., respondent no. 8 herein, has filed one more election petition in No. ELN 22/2016-17. However, none of the parties have deposed that service of whip has been completed to the petitioners. Further, the authorization made by the President of Karnataka Pradesh Congress Committee (for short 'KPCC') to the General Secretary, KPCC to delegate power to President, BRDCC, to issue party whip is not proved by them. But, in order to harass the petitioners with the political motivation, the aforesaid election disputes are raised by filing complaints and the impugned order which is challenged under these writ petitions have been passed by the first respondent-Deputy Commissioner though he has not at all considered the documentary evidence and the material facts on record. Hence, the same has been questioned under these writ petitions by the petitioners by urging various grounds. 7
4. On the other hand, respondent No.5 has filed objection statement to the writ petitions wherein it is contended that Pattan Panchayat, Kottur, consists of 20 councilors, the election in the Kottur Pattan Panchayat was conducted in the year 2013. The petitioners herein have contested on the symbol of INC. On 27.04.2016 the President of KPCC has authorized the General Secretary conferring the power on him to communicate the President, BRDCC in order to issue whip on behalf of the parties. The main contention of the petitioners is that the Act conferment of the authorization by the General Secretary amounts to sub delegation which is bad in law and does not hold any force, which could be viewed from any angle, the doctrine of delegate cannot delegate his power does not applicable to the present case. Whereas the Hon'ble Supreme Court held that the doctrine of delegates non protestdelegare is not a rule of law, but a rule of construction. The maxim runs in so far as the principal and agent is concerned in civil law and in administrative or legislative actions with respect to the Government actions. 8 The resolution is made with an objective to decrease the complexity and to smoothen the acts and also to improve the efficiency in the decisions to be made as the local bodies would know more about the candidates in the district levels. The claim made by the petitioners 1 to 9 herein that the whip was not served upon them merely because taking up the contention by the petitioners herein is not sufficient but also the petitioners must enter the witness box and produce satisfactory documents to prove their contention. In the instant case, the petitioners have not entered the witness box to substantiate their claim. Therefore, the question of service of whip is answered by the respondent No.1, being the Deputy Commissioner, Ballari District, is rightly held . Whereas the petitioners have not only committed breach of whip notice it was legally issued by the respondent no.8 but their conduct also amounts to defection u/S 3(1)(b) of the Act. Therefore, they are liable to be disqualified as the act of the petitioners is contrary to law and against the interest of the national party. For all these grounds it is contended that the petitions filed 9 by the petitioners is devoid of merit both on facts as well as on law and needs to be dismissed with exemplary costs.
5. It is an undisputed fact that, the petitioners are the elected members of Pattan Panchayat, Kottur, the complaints have been filed by the complainants, who were also the members of the Pattan Panchayat, Kottur, they have filed a complaint dated 20.05.2016 in Election Appeal No. 15/2016- 17 seeking disqualification of the petitioners 1 to 9 herein from the membership of the aforesaid Town Panchayat, Kottur, on the ground of defection contrary to Sec. 3 of the 'Act'. At this stage, it is relevant to state that the complaint produced vide annexure-A for reference of the issues under these writ petitions. It is an undisputed fact that, subsequent to service of notices in the aforesaid election petition nos. 15/2016-17 and 22/2016-17 the petitioners have filed objections in detail seeking dismissal of the aforesaid election petitions filed by the respondents / complainants as respondents 5 to 7. Annexure-B is the copy of the objection. 10 Second complaint filed by the complainant is produced as Annexure-C. Petitioners 1 to 9 who have filed their objection to the second complaint and the said objection is produced as Annexure-D. Whereas in these writ petitions it is borne out that, in order to establish the case of a complaint made by the respondents 3 to 7 against the petitioners herein, being the elected members of the Kottur Pattan Panchayat, one T.Manjunath, who is arrayed as petitioner No.3 in Election Petition No. 15/2016-17 have been examined as P.W.1 and in the course of his examination to establish their case that Exs.P.1 to 14 are marked. So far as the complaint in No. 22/2016-17 P.W.2 has been examined and Exs.P.50 to 54 and 57 are got marked. It is relevant to state that as Ex.P.49, P.55 and P.56 are mentioned as documents, but no such documents are existing and hence they are left out. Whereas Ex.P.1 to 14 are none other than the Form Nos. A and B of the elected members, Exs.P.16 to 29 are the nomination papers. But, all these documents are not disputed in the aforesaid election petitions. Election Disputes have been 11 admitted by both the parties. Ex.P.32 is the election notification dated 30.04.2016 issued by the Tahasildar, Kudligi, for the aforesaid scheduled election of the President and Vice President of the Kottur Town Panchayat. The said notice is produced as Annexure-E. It is relevant to state at this stage that, Exs.P.33 to 46 are the alleged notices/ whip and those copies are produced as Annexures F to F8. As the aforesaid alleged whip/ notices have been produced in order to prove the service of whip in respect of the election petition no. 15/2016-17 and election petition no. 22/2016-17 whereas in the election petition no. 15/2016-17 the respondents/ complainants have not produced any documents to reveal that in what way the complaint in election petition no. 22/2016-17 have been authorized to issue the alleged whip/ notices in question and the complainant No. 3 in election petition No. 15/2016-17 who have been examined as PW1, wherein he clearly admits that he did not see any document with regard to the authorization or authority of P.W.2 who issued a whip in question. But 12 Ex.P.51 discloses that the General Secretary of KPCC had been authorized to delegate the power of issuance of whip. Ex.P.50 dated 10.01.2004 is the resolution and it does not disclose that the President of KPCC has authorized the General Secretary to sub delegate the power of issuance of whip to the complainant in Election Petition No. 22/2016-17. It is relevant to extract the facts mentioned in the resolution dated 27.04.2016 vide Annexure-H which reads as under:
The Resolution adopted unanimously by the Executive Committee Meeting on 10.01.2004 at KPCC Office is herewith reproduced, which delegates the power to the President, KPCC to issue party directions or whip.
Resolution 3 In a resolution adopted unanimously, as per the provisions of Article XXVII(b) Constitution Indian National Congress the Executive Committee of the Pradesh Congress Committee, delegates, power to issue the party direction (whip) to vote or to abstain from voting in or intentionally remain absent from any meeting of Local Authorities contrary to the direction given by the party. The President, KPCC is also authorized to delegate the power to the General Secretary of KPCC or to the 13 President of District Congress Committee or President of Block Congress Committee of Local Authorities to issue the Party Direction (whip) to the elected party members under their jurisdiction. It is also resolved to empower the President KPCC to authorize the General Secretary or Presidents of the District and Block Congress Committees to proceed against the defeated member who has voluntarily given up the membership of the Congress party or defied and violated the party direction (Whip) before the competent authority.
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6. The letter dated 27.04.2016 issued by the President, KPCC, delegating the power to the General Secretary, KPCC, to re-delegate the power to issue to the President, District Rural Congress Committee, the whip to the party members, at Annexure-J. The letter dated 28.04.2016 issued by the General Secretary, KPCC, Bengaluru re-delegating the power to the President, District Rural Congress Committee, Ballari to issue the whip to the party members at Annexure-K. The Annexures-J and K have been noted for reference to deal with the issues relating to disqualification order passed by the 14 respondent No.1/ Deputy Commissioner has been challenged under these writ petitions.
7. The learned senior counsel appearing for the petitioners during the course of arguments has taken me through the aforesaid annexures-J and K, as stated supra, and also contended in the written submissions in support of the grounds which are urged in these writ petitions. In the written synopsis the learned senior counsel for the petitioners has reiterated the contentions taken in the writ petitions.
Whereas the President, BDRCC was legally authorized to issue the whip. According to the resolution vide Annexure-J, the President, KPCC has authorized the General Secretary, KPCC, to issue the whip or the President, KPCC can authorize the President, BDRCC to issue whip. However, the President, KPCC could not authorize the General Secretary, KPCC to further authorize the President, BDRCC to issue the whip. In the present cases, the President KPCC directing the President, BDRCC to issue the whip, but the President, KPCC has 15 empowered the General Secretary, KPCC, to authorize the President, DCC to issue the whip. Therefore, the power relating to issuance of the whip was not properly delegated by the President, KPCC to the President, BDRCC, Ballari. But the power relating to issuance of whip could not be further delegated from the General Secretary, KPCC to the President, BDRCC. But, in the instant case, the General Secretary of the KPCC has further delegated the power of issuance of whip to the President, BDRCC. But, the respondents/ complainants in the aforesaid election petition dispute as raised by them before the respondent No.1-Deputy Commissioner, not produced any documents in order to show that the President, KPCC has delegated the power directly to the BDRCC. The President, KPCC has not directly authorized the President, BDRCC, Ballari, to issue whip, but the President, KPCC, has authorized the General Secretary and in turn, the General Secretary directed issuance of whip to the President, BDRCC, which is not sustainable under law, which could be viewed from any angle. Therefore, the issuance of 16 whip cannot be further delegated but the same is happened in the instant cases and disputed under these writ petitions by urging various grounds.
8. It is further argued that the respondent No.1-Deputy Commissioner who passed the impugned order disqualifying the petitioners without appreciation of the evidence on record relating to the disqualification of the elected members of Kottur Pattan Panchayat. Whereas, in support of this contention the learned senior counsel has placed reliance on the decisions of the Hon'ble Supreme Court reported in 2000 (8) SCC 82 (Sadashiv H. Patil Vs. Vittal D Teke & Others) and unreported decision of this Court in the case of N.Shivanna & Ors. Vs. The Deputy Commissioner & Others, relating to under what circumstances the power of issue of whip cannot be delegated.
At paragraph nos. 4(3)(1)(b) and 14 & 15 of the Judgment, the Hon'ble Supreme Court has held as under: 17
4. We will refer to a few relevant provisions from the Act and the Rules insofar as are necessary for the purpose of the appeals before us. Section 2 is the interpretation clause.
The relevant definitions are as under:-
"2. In this Act unless the context otherwise requires,-
(a) 'aghadi' or front means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority;
xxx xxx xxx xxx
(e) local authority means -
(i) a Municipal Corporation,
(ii) a Municipal Council;
(iii) a Zilla Parishad; or
(iv) a Panchayat Samiti;
xxx xxx xxx xxx
(i) 'municipal party', in relation to the councillor belonging to any political party or aghadi or front in accordance with the Explanation to section 3, means -
(i) in the case of a councillor of a Municipal Corporation, the group consisting of all councillors of the Municipal Corporation for the time being belonging to that political party or aghadi or front in accordance with the said Explanation;18
(ii) in the case of a councillor of a Municipal Council, the group consisting of all the councillors of the Municipal Council for the time being belonging to that political party or aghadi or front in accordance with the said Explanation;
(j) original political party, in relation to a councillor or a member, means the political party to which he belongs for the purposes of sub-section (1) of section 3.
***
3. Disqualification on ground of defection.-(1) Subject to the provisions of sections 4 and 5, a councillor or a member belonging to any political party or aghadi or front shall be disqualified for being a councillor or a member-
(a) if he has voluntarily given up his membership of such political party or aghadi or front; or
(b) if he votes or abstains from voting in any meeting of a Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti contrary to any direction issued by the political party or aghadi or front to which he belongs or by any person or authority authorised by any of them in this behalf, without obtaining, in either case, the prior permission of such political party or aghadi or front, person or 19 authority and such voting or abstention has not been condoned by such political party or aghadi or front, person or authority within fifteen days from the date of such voting or abstention :
***
14. 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.
15. In Civil Appeal Nos.6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules or regulations exist. Had they been there an effort could have been made to find out authorisation to issue whip having been 20 provided therein. During the course of hearing we asked the learned counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence of any such authorisation which also goes to show that there was no such authorisation given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3(1)(b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular persons candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party, Aghadi or front to which the Councillor proceeded against belongs or be by any person or authority authorised in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained.
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At paragraph no. 23 this Court in N.Shivanna's case stated supra has held as under:
21
23. The fact that the petitioners were riot at Gundlupet on 04.01.2002 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 03.01.2002 on 04.01.2002 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.Rajashekhar, P.W.6-
S.rajashekar and P.W.7-R.Jayaram, in respect of affixture of the a written whip on 04.01.2002, 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 whip, on the petitioners, on 04.01.2002."
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9. In W.A. No. 4300/2017 wherein a Division Bench of this Court has taken a view that the power of issuance of whip 22 cannot be delegated. The Hon'ble Supreme Court in Civil Appeal No. 5227/2017 (Dr. Tp Senkumar Ips Vs. Union of India and ors.) at paragraph Nos.9, 14 and 15 has held as under:
"9. Resort to Article 32 read with Article 142 of the Constitution in such situations was in continuation of similar views expressed in Vishaka v. State of Rajasthan wherein this Court held in paragraph 16 of the Report that in the absence of enacted law, "...... to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution." A similar view was taken by this Court in Vineet Narain v. Union of India] wherein this Court held in paragraph 49 of the Report as follows:
"There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of 23 law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role......... It is essential and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf."
14. Section 24 of the Act provides for the constitution of the State Security Commission for discharging certain functions as mentioned in Section 25 of the Act. The State Security Commission consists of the Minister in-charge of Home Department who shall be the Chairperson; the Minister in- charge of Law; the Leader of Opposition; a retired Judge of the High Court nominated by the Chief Justice of the High Court of Kerala; the Chief Secretary; the Secretary to State Government in the Home Department and the State Police Chief as ex- officio members and three non-official members of eminence nominated by the Governor of the State, one of the non- official 24 members being a woman. In other words, the State Security Commission is expected to be a relatively independent body, but is not truly so in view of other provisions in the Act.
15. The functions of the State Security Commission as given in Section 25 of the Act read as follows:
"25. Functions of the Commission. - (1) The Commission shall have the following functions, namely:-
to frame general policy guidelines for the functioning of the Police in the State;
to issue directions for the implementation of crime prevention tasks and service oriented activities of the Police;
to evaluate, from time to time, the performance of the Police in the State in general;
to prepare an annual report of the activities of the Commission and submit it to the Government; and to prepare the guidelines for the changes to be carried out, from time to time, in the State Police; and to discharge such other functions as may be assigned to it by the Government.25
(2) The report submitted by the Commission under clause (d) of sub-section (1) shall, on receipt, be placed before the Legislative Assembly.
(3) No Act or Proceedings of the Commission shall be deemed to be invalid merely by reason of any vacancy in the Commission at the time any such Act or Proceedings was done or issued.
(4) Notwithstanding any guidelines or directions issued by the Commission, the Government may lawfully issue such directions as it deems necessary on any matter, if the situation so warrants, to meet any emergency.
(5) The directions of the Commission shall be binding on the Police Department:
Provided that the Government may, for reasons to be recorded in writing, fully or partially, reject or modify any recommendation or direction of the Commission."
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For all these grounds as urged by the learned counsel appearing for the petitioners seeking for allowing the writ petitions by setting aside the impugned order passed by the respondent No.1-Deputy Commissioner, Ballari.26
10. Learned senior counsel appearing for the petitioners further submitted the written submission contending that the service of whip upon the petitioners herein has not been proved. Further, the whip is dated 30.04.2016 and on the same day the whip was also issued by President, DCC.
Further, the whip was neither posted nor personally given to the petitioners. On the same day, the so called whip was pasted to the doors of some other persons and not the petitioners' houses. Further, as per resolution dated 10.01.2004 the KPCC office has delegated the power to the President, KPCC to issue party whip. According to the resolution, the President, KPCC can authorize the General Secretary, KPCC to issue whip, or the President, KPCC, can authorize the President, DCC to issue the whip. However, the President, KPCC could not authorize the General Secretary, KPCC to further authorize the President, DCC to issue the whip. According to the resolution, the power to issue the whip could be delegated from the President, KPCC to the General Secretary, KPCC. But the said power could not 27 further be delegated to the General Secretary, KPCC. As per the order of this court in W.P. Nos.11335-11336/2017 disposed of on 27.04.2017 wherein this Court specifically held that, a whip cannot be further delegated. The order of the Deputy Commissioner being the respondent No.1 is not sustainable under law and is liable to be set aside. Accordingly, prayed to allow these petitions.
11. On the other hand, learned counsels appearing for the respondents including the learned AGA supported the order of the Deputy Commissioner and sought for dismissal of the writ petitions.
12. Learned senior counsel appearing for respondents 3 to 8 submitted synoptic arguments and argued that, the petitioners have voluntarily given up, but nowhere in the complaint nor in the evidence or in the order for whispering of giving up of their membership by the petitioners, others being the fact, question of entertaining the arguments advanced by the learned counsel for the respondents in support of their 28 arguments and also raising objections which is untenable. As per Ex.P.15 the KPCC (I), Bengaluru, as per Article 27(b) of the Constitution of INC authorized the President, KPCC(I) delegating the power to issue whip either to the General Secretary of the KPCC or the DCC President, to all the elected councilors as per Ex.P.15. The petitioners and the respondents 3 to 7 were the elected members of the Pattan panchayat, Kottur from INC. The respondent No.4, namely, K.M. Kotraiah and respondent No.7 Halamma were fielded by INC for the post of President and Vice President of Pattan Panchayat, Kottur. As the respondent No.1-Deputy Commissioner who directed the Tahasildar, Kudligi, to conduct the election as per the schedule to the post of President and Vice-President as per Ex.P.32, the General Secretary has delegated the power to issue of whip at Ex.P.52. As per the calendar of events issued by the Tahasildar, Kudligi, the BRDCC has issued whip to all the 14 elected councilors intimating to vote in favour of the party candidates. The whip was served on all the Councilors 29 personally and through their family members and by affixing on the doors of the houses. However, the petitioner No.1 filed nomination for the post of President in violation of the whip and M.S. Pankaja, a Councilor from BJP has filed her nomination for the post of Vice President. In contravention of the whip issued to the INC councilors from Ex.P.48(F) to 48(T) the petitioners have voted against the party whip amounting to violation of the whip. The Hon'ble Supreme Court in a judgment reported in (2008) 10 SCC 1 has held that the propriety of judicial discipline requires the judgment of co- ordinate benches cannot be held to be wrong and a different opinion cannot be expressed, but should refer it to a larger bench. Further, the pronouncement of order in WP Nos. 21381 & 21463-467/2015, may be distinguished if the documents are understood in proper perspective. The President of KPCC in no uncertain terms says, power to issue whip is given to the President, DCC by the Scretary. The said document clearly shows that the person who has to issue whip is the DCC President and Secretary, KPCC is authorized 30 to communicate the said direction. When the delegator names the delegate to issue whip and instead of communicating directly, authorizes the Secretary, an officer of the organization, to inform or communicate to delegate, question of sub-delegation does not arise. Further, the pronouncement made in WP No. 11335-336/2017 does not amount to precedent to follow as it is impermissible to ignore the earlier judgment in WP Nos. 21381 & 21463-465/2015. The Hon'ble Supreme Court has held, to avoid such a situation, that the second judgment of a co-ordinate bench taking a contra view becomes obiter. For the aforesaid reasons and also in view of the dictum laid down by the Hon'ble Supreme Court, learned senior counsel appearing for respondents sought for dismissal of the writ petitions filed by the petitioners as devoid of merits.
13. In view of the above said rival contentions of the learned senior counsel appearing for the petitioners and the learned senior counsel appearing for the respondents respectively, the 31 point that would arise for consideration of this Court is as under:
Whether the impugned order passed by the respondent No.1-Deputy Commissioner, Ballari, in appeal No. ELN 15/2016-17 and appeal No. ELN 22/2016-17 dated 03.06.2017 vide Annexure-G, is justified under law?
14. There is no dispute about the petitioners are the elected members of Pattan Panchayat, Kottur. Similarly, there is no dispute that the complaints, 5 in number, in the complainants were also being the members of the Pattan Panchayat, Kottur, have filed the complaint on 20.05.2016, as based upon the complaint assigning number as Election Petition No. 15/2016-17, it is against the petitioners 1 to 9 for seeking disqualification from the membership of the Pattan Panchayat, Kottur. The complaint in Election Petition No. 22/2016-17 is also be clubbed with the aforesaid election 32 petition no. 15/2016-17. As urging the grounds in the complaint of the defection is contrary to Sec. 3 of the Act. The copy of the complaint for reference purpose it is produced as Annexure-A. Subsequent to initiation of the complaint / election petition against the petitioners 1 to 9 herein that they have filed their objection in detail as where the proceedings has been initiated against them before the respondent No.1- Deputy Commissioner, Ballari district. Whereas in their objection statement in detail that they have sought for dismissal of the election petition filed by the respondents 5 to 7 herein, the objection in detail is filed by them it is for the reference which is produced as Annexure-B. Subsequent to filing of objections by the petitioners 1 to 9, the respondents 5 to 7 herein just to workout the defects in their election filed by the second complainant by the President of DCC, Ballari, copy of the second complaint it is produced as Annexure-C for the reference of the issues involved in these petitions. Objections of the petitioners 1 to 9 have been filed to the second complaint, as the objection is produced vide 33 Annexure-D. These are the documents very much required to be looked into relating to the issues of disqualification of the petitioners 1 to 9 and so also the order passed by the respondent No.1-Deputy Commissioner, Ballari district.
15. Whereas in order to establish their case one T.Manjunath who is respondent No.5 is examined as P.W.1 in Election Petition No. 15/2016-17 whereas in the course of the examination that Ex.P.1 to P.14 are got marked those documents as Exs.P.1 to P9. Whereas the complaint in election petition no. 22/2016-17 wherein P.W.2 have been examined and in the course of evidence being adduced by him, that Exs.P.50 to 54 and 57 are got marked to establish their cases relating to the election petition. But, Ex.P.26 are not marked and these numbers are left out during the course of the marking of the documents and the evidence of P.W.2 has been adduced. It is relevant to state that Ex.P.1 to Ex.P.14 are form Nos. A and B of the election numbers in so far as Exs.P.16 to 29 are the nomination papers which has 34 been filed by them. There is no dispute about all these documents which were got marked as admitted by both the parties in the aforesaid complaint/ election petition.
16. The Tahasildar, Kudligi, who has issued a notice dated 30.04.2016 it is marked as Ex.P.32. As the notice issued by him is relating to the post of President and Vice President of Kottur Panchayat. Ex.P.33 to 46 are the alleged notices of whip it is produced for the reference purpose got marked as Exs.F. to F.8. Whereas in the course of cross-examination of P.W.2 in Election Petition No. 22/2016-17 he has not whispered about the service of whip issued against the petitioners 1 to 9. But he has adduced his evidence that there is a clause and provision in the bye laws of the Congress Party to appoint a President to DCC, Ballari. But, he did not specifically state that under which clause there is a provision to appoint the DCC, President. He has not produced any documents to show that he has been appointed as the President, DCC, and he has not whispered about the 35 service of whip to the petitioners 1 to 9 in which the order which has been passed by the respondent No.1-Deputy Commissioner has been challenged under these writ petitions by urging various grounds.
17. P.W.1 in Election Petition No. 15/2016-17 wherein he has clearly admitted that he did not see any documents regarding the authorization or authority of P.W.2 to issue whip in question. Whereas Ex.P.51 discloses that the General Secretary of KPCC who was authorized to delegate the power to issue whip relating to the election scheduled for the post of President and Vice President of Kottur Panchayat, Kottur. The resolution dated 10.01.2004 as mentioned in Ex.P.15 it does not disclose that the President of KPCC has been authorized to the General Secretary to sub delegate the power of issuance of whip to the complainant in Election Petition No. 22/2016-17. It is relevant to state at this stage, keeping in view the contention which are taken by the learned counsel for the petitioner as well as the learned counsel for the 36 respondents respectively in so far as the well established principles of law that the delegatee can not sub-delegate his power unless he is empowered authoritatively in this behalf. No such document is produced in order to establish the allegations made in the complaint for seeking disqualification from the membership of town panchayat, Kottur. Whereas, respondent No.1-Deputy Commissioner, Ballari, who has not at all considered this vital aspect relating to the service of whip to all the members without considering the service of whip duly. The disqualification order passed by him is patently illegal and it is not sustainable under law which could be viewed from any angle, as this contention which is taken by the learned senior counsel for the petitioners during the course of his arguments.
18. At this stage it is relevant to extract the scope and object of Sec. 3(1)(b) of The Karnataka Local Authorities (Prohibition of Defection) Act, 1987, which is as under:
3. Disqualification on the ground of defection - (1) subject to the provisions of Sections 3-A, 3-B and 4, a 37 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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19. Whereas Sec. 3(1)(b) of the Act, it connotes that, if a Councillor from the party member votes or abstains from voting or intentionally remained absent from any meeting of a Municipal Corporation/ Municipal Council, Town Panchayat, which are contrary to any direction issued by the political party, it is in the form of whip, he belongs or by any person or authority authorized by it, in this behalf, without obtaining prior permission of such party, person or authority. In so far 38 as the provisions of whip or the direction it must be issued either by a political party being a authoritative person to which he belongs in this behalf. Therefore, on meticulous reading of the aforesaid provision it reveals that, either the political party itself has to issue a direction in the form of whip or it can also authorize any person or authority to issuance of whip to the members of the party.
20. Sec. 2(vi) of the Act is also relevant to be stated herein which defines the political party, which reads as under:
(vi) "Political party" in relation to a Councillor or member means a political party recognized by the Election Commission of India as a National Party or a State Party in the State of Karnataka under the Election Symbols (Reservation and Allotment) Order, 1968, and to which he belongs for the purpose of sub-section (1) of Section 3.
21. Therefore, it is made it clear the political party means- the National Party or a State party in the State of Karnataka under the umbrella of election symbols. Therefore, for all 39 practical purposes relating to the KPCC the Indian National Congress is the party and the President of the State Congress Party is the Chief of the State Party, so far as the Karnataka State is concerned with election symbols. Therefore, it is relevant to state that without showing that the whips should be issued either by the President, KPCC himself being an authoritative person or he can authorize to anybody to issue such whip in accordance with law. In so far as the proof of such issuance of authority to some other person by the State President is to be established without any clouds of doubt. Therefore, in this background it is relevant to state herein 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 40 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."
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22. It is worthwhile to be stated that the relevant factual aspect of the aforesaid case apart from the aforesaid principle laid down by this Court at paragraph no. 7 of the paras of the decision, it is observed as under:
"7. Mr. Prakash T. Hebbar, the learned counsel for the petitioners, has vehemently contended that the requirement of law is that proper delegation of power has to be made from the President of KPCC to the President of DCC. However, in the present case, there is not an iota of evidence to show that there is delegation of power from the President of KPCC to the President of DCC. The only document which has been produced before the learned Commissioner was a whip issued by the General Secretary, by letter dated 10.07.2014, which merely state that "in terms of the order of the President of 41 KPCC, Mr. M.S. Sethuram, the President of DCC is authorized to issue whip to the elected members from the Congress Party to vote in favour of the Congress party candidates". Such an authorization issued by the General Secretary to the President of DCC could not form the basis for issuance of the whip by the President of DCC. For the order issued by the President is conspicuously missing in the present case."
23. Keeping in view of the aforesaid legal aspect as well as factual aspect discussed by this Court it is made it clear that issuance of whip by the party is to be established without any clouds of doubt to the Court. In this case the whip was issued relating to the resolution adopted unanimously by the executive committee meeting held on 10.01.2004 at KPCC Office, is produced which delegates power to the President, KPCC, to issue party direction or whip as Annexure-H. It is relevant to extract the resolution No.3 which is as under:
Resolution 3 In a resolution adopted unanimously, as per the provisions of Article XXVII(b) Constitution Indian National Congress the Executive Committee of the Pradesh Congress Committee, delegates, power to issue the party direction (whip) to vote or to abstain from voting in or intentionally remain absent from 42 any meeting of Local Authorities contrary to the direction given by the party. The President, KPCC is also authorized to delegate the power to the General Secretary of KPCC or to the President of District congress Committee or President of Block Congress Committee of Local Authorities to issue the Party Direction (Whip) to the elected party members under their jurisdiction. It is also resolved to empower the President KPCC to authorize the General Secretary or Presidents of the District and Block Congress Committees to proceed against the defeated member who has voluntarily given up the membership of the Congress Party or defied and violated the party direction (whip) before the competent authority.
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24. As issued by the General Secretary, KPCC, N.Bosaraju, the authoritative whip dated 27.04.2016 as issued by Dr.G.Parameshwar, President, KPCC, on behalf of the party it is as Annexure-J issuance of whip order delegated to the General Secretary, KPCC Sri N.S. Bosaraju as in the form of direction of a whip issued to the President, Ballari, DCC, Sri B.V. Shivanna (Shivayogi) relating to establishing the case by the complainant that the General Secretary, KPCC Sri N.S.Bosaraju so also the President, KPCC Dr.G.Parameshwar, requires to be examined relating to establishing the manner in which the issuance of whip in the form of direction was issued by the political party, i.e., the President, KPCC. 43 Therefore, the factual aspect as well as the legal aspect is requires to be considered in a proper perspective manner as where the proceedings has been initiated on the filing of the complaint by the complainant/ respondent being the elected members before the respondent no.1-Deputy Commissioner, Ballari district. Therefore, the aforesaid ratio of the reliance as stated supra, are aptly applicable to the present case also be the grounds urged in these petitions for disqualification of the order passed by the respondent No.1-Deputy Commissioner. The order of issuance of whip in the form of direction as Annexure-H and Annexure-J that has been produced before the Court nor the contents of the said letter has been established by examining the aforesaid General Secretary to the party. As referring the President, DCC has got authority to serve whip on the petitioners and he has been duly authorized by the Party President.
25. It is pertinent to note at this stage a decision of the apex Court in AIR 2000 SC 3044 between Sadashiv H. Patil V. 44 Vitthal D. Teke and Others wherein the apex Court at paragraph no. 13 held as under:
"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."
26. Whereas in the aforesaid reliance it is crystal clear that the consequence of disqualification will have a serious impact on the future career of a politician and it will have an evil effect throughout his career and throughout his life as well as his political career apart from the difficulties to the people of 45 such constituencies in which he is elected as a member. Therefore, a strong proof is required with regard to the issuance of whip and violation of the same. Therefore, the apex Court held, a rigorous compliance with regard to the provision of law has to be done.
27. The connotation of Sec. 3(a)(ii) of the said Act clearly reveals that if a person vote or abstains from voting in or intentionally remained absent from meeting, it is contrary to the directions issued by the political party. The order it was passed by the respondent no.1-Deputy Commissioner, Ballari District, has been challenged under these writ petitions in which the petitioners alleged to have voted against the whip issued in the said election proceedings such as the post of President and Vice President, Town Panchayat, Kottur, as they were casting their votes though the official candidate has been fielded in the aforesaid postings. Whereas on plain reading of the said materials available on record relating to the complaint which is filed by the complainant that the 46 petitioners as on the date of election it was scheduled for the post of President and Vice President of the Kottur Town Panchayat has come under the purview of Sec.3(1)(a) of the Act, and the same was invoked against these petitioners. Whereas the learned counsel for the petitioners has taken a strenuous contentions relating to the impugned order passed by the respondent No.1-Deputy Commissioner of Ballari District. It is based upon the evidence as putforth by the complainant who has filed a complaint before the concerned authorities and the same has been referred to the respondent No.1 to initiate the proceedings against the petitioners but the evidence which is adduced by them to establish their case relating to violation of the whip issued by the competent authorities such as the President of the KPCC having a power for issuing the whip and sub-delegation of the power in turn from the General Secretary of the KPCC to the DCC of Ballari Rural District, Ballari. But the same founds to be contrary to the scope and object of Sec. 3(a)(ii) of the Act. 47
28. Though the learned senior counsel for the respondents respectively countering the arguments of the learned senior counsel for the petitioners before this Court, relying upon Annexure J and H and also service of notices relating to the whip which was issued by the competent authority but the service of notice relating to the issuance of whip it is found to be bereft of evidence on record adduced by the complainants/ respondents being the members of the Pattan Panchayat, Kottur and the concrete materials has not been placed by them to establish their case for having to proceed against the petitioners as u/S 3(a)(ii) of the Act.
29. Learned senior counsel appearing for the respondent No.5 emphatically contended that the interpretation of Sec. 3(1)(a)(ii) so also Sec. 4 of the Act but for the reference of the scope and object of this provision has been extracted as the learned senior counsel contending that it needs to be interpreted but the same has been in detail dwelling into the said Section 3(1)(b) and 4 of the Act. The same has been in 48 detail gone through the object in the order passed by this Court in W.P. Nos.11335-36/2017 (LB-ELE) dated 27.04.2017. The said order has been confirmed by a Division Bench of this Court in W.A. No. 4300/2017 (LB-ELE) and W.A. Nos.4694/2017 in orders dated 31.07.2017.
30. Whereas regarding the disqualification of a member, who, alleged to have voted contrary to the whip it is issued by the competent authority such as the President of KPCC as per the resolution passed and also have power of sub-delegation and this contention which is taken by the learned counsel for the petitioner as well as the learned counsel for the respondents in these writ petitions but the same has been in detail dwelling into the issues in a case in Sadashiv H. Patil Vs. Vittal D. Teke in 2000 (8) SCC 82.
31. A bare perusal of the resolution as Annexure-H it clearly reveals that the executive committee of KPCC has delegated the power to issue whip to the President, KPCC. The President, KPCC can further delegate the power to issue the 49 whip to the persons, viz., the General Secretary, KPCC, The President, DCC or the President of Block Congress Committee of the local authorities. Whereas the President, KPCC can further authorize the General Secretary or the President, DCC can further authorize the General Secretary or the President, DCC to proceed against the member and violated the party whip as issued by the competent authority. Whereas the President, KPCC to further delegating the power by him to the President, DCC. In fact, the power to issue has to be directly delegated from the President, KPCC to the President, DCC. The aforesaid power cannot be routed through the General Secretary, KPCC to the President, DCC. It is indeed trite to state that once the procedure has been established by the resolution passed by the concerned authorities dated 27.04.2016 and the same has to be adhered. Therefore, the President, KPCC, would not be justified in empowering the General Secretary, KPCC to authorize the President, DCC to issue the whip. If such a procedure were adopted by the 50 President, KPCC, it would be in violation of resolution passed by the concerned authorities.
32. Be that as it may, in the election for the post of President and Vice President of Kottur Pattan Panchayat, the respondents 1 to 9 in the proceedings it was held before the respondent No.1-Deputy Commissioner that they have voted against the official nominee of the party thereby defying the party whip resulting in defeat of the official nominee of the INC and Sri Anil Hosamani and Smt. Pankaja Tippeswamy who were elected as President and Vice President of Town Panchayat, Kottur, who belonged to other parties. Therefore, the complaint has been filed by the respondents in that proceedings to disqualify the members who defied the party whip as provided u/S 3 of the Act, as this aspect is the core issue in these writ petitions to be determined keeping in view the evidence has been given by the complainants/ respondents who filed a complaint before the concerned 51 officer and the same has been referred to the respondent No.1-Deputy Commissioner, Ballari.
33. There is no dispute that the petitioners/respondents 1 to 9 in the said proceedings was initiated on the complaint filed by the elected members as they are the councilors of Town Panchayat, Kottur as INC candidates but after announcement of the candidates fielded to the post of President and Vice President, as the post of candidate of President was reserved to General Category and the post of Vice President was reserved for General Woman. The Deputy Commissioner through proceedings dated 26.04.2016 appointed the Tahasildar, Kudligi to conduct election to the post of President and Vice President of Town Panchayat, Kottur. As the proceedings dated 26.04.2016 to that effect the concerned Tahasildar issued election notification conducting election of President and Vice President on 30.04.2016 as per the notification issued by him the election for the aforesaid post was scheduled on 07.05.2016 at Town Panchayat, 52 Kottur. The President, Ballari District Rural Congress Committee, Ballari, who issued whip to all the 14 councillors including the contested President and Vice President to cast their votes in favour of the official candidates have been fielded and the said whip has been served on all the 14 councillors, some of the service was personally and some through inmates of the house and pasting on the doors of the houses of the elected councilors and was videographed by the Party and the same is incorporated in the impugned order passed by the respondent No.1-Deputy Commissioner.
34. As per the notification issued by the Tahasildar, Kudligi, was appointed as Returning Officer. As he fixed the date for the election to the post of President and Vice President of Town Panchayat, Kottur. The candidates fielded as K.M. Kotraiah and Smt. Halamma filed their nomination papers as nominees of the INC. But, surprisingly, the respondent No.1 H.Anil Kumar @ Anil Hosamani, who was elected on INC symbol filed his nomination to contest the election for the 53 post of President and he was issued Form B by the INC. But, as against the decision whip was issued by the political party, he had filed nomination to contest the election of President of Town Panchayat, Kottur.
35. One candidate M.S. Pankaja who is the nominee of the BJP filed her nomination to contest the election for the post of Vice President. On account of filing multiple nomination papers the Tahasildar decided to hold election by raising up the hands by the elected members in favour of the candidates of their choise as he being the Returning Officer. This is also incorporated in detail in the impugned order which is questioned in these writ petitions. As at the time of the election process the respondents in that proceedings have raised hands in favour of Anil Kumar alias Anil Hosamani to the post of President and the respondents once again raised their hands in favour of Pankaja to the post of Vice President. Thus the respondents / petitioners herein have voted in contravention of decision such as whip issued by the political 54 party but it was violated and Form B was issued to contest the election. The respondents in the aforesaid proceedings that they were voting against the decision of the political party in favour of respondent No.1 who is not the nominee of the political party, is bad and illegal and the same has been questioned as it is attracted disqualification u/S 3 of the Act.
36. The point that was raised before the respondent No.1- Deputy Commissioner, Ballari, is whether the complaint in Nos. 15/2016-17 and 22/2016-17 has been authorized to issue the whip in question as per the resolution dated 10.01.2014 and that resolution dated 10.01.2014 has already been is as stated supra. Whether the complainant in both the cases have proved notice of the whip in question are duly served on the respondents keeping in view the scope and object of Sec. 3 of the Act.
37. In order to establish the allegations made in the complaints in the aforesaid proceedings P.W.1 and P.W.2 have been subjected to examination and also got marked 55 exhibits. But, on careful reading of the contents of Ex.P.15 and the resolution adopted unanimously by the Executive Committee meeting held on 10.01.2014 at KPCC office it clearly reveals that the President of KPCC who authorized to delegate the power to General Secretary, KPCC or the President, DCC. The question it was raised before the Court is relating to the President of KPCC is authorized to delegate the power to the General Secretary of KPCC or the President of DRCC and further sub-delegation of the power by the President of KPCC to the General Secretary or President of KPCC but the General Secretary as per the party resolution through that the sub delegation of power through the General Secretary is contra to the earlier resolution dated 10.01.2004 cannot be considered as valid authorization or delegation of power to issue the whip. Therefore, it is made it clear that the authorization mentioned in Ex.P.51 and P.52 are contrary to the authorization and as well as the resolution dated 10.01.2014.
56
38. A reading of the authorization issued by the President, KPCC which is at Annexure-F that there is no reference to any party resolution on the basis of which such party to issue a direction or whip was delegated to him which he has sub delegated. This point is raised by the learned Senior counsel by the petitioner during the course of arguments advanced by questioning the sustainability of the order passed by the respondent No.1, regarding disqualification of the members and the petitioners being the respondents in the complaint which was filed by the complainant being the members of the Town Panchayat, Kottur.
39. In so far as the question of service of notice Exs.P.35 to P.46 which relates to respondents 1 to 9/ petitioners herein, Ex.P.35 is the whip notice issued to Smt. Hemavathi. The said notice does not contain the signature of Smt. Hemavathi. But, it contains the signature of Smt. Rathnamma. Whereas in the complaint the complainants have not produced any documents to show in what way Smt. Ratnamma is related to 57 Smt. Hemavathi, being the respondent No.2. Therefore, it is crystal clear that the alleged whip at Ex.P.35 is not at all served on the respondent No.2-Smt. Hemavathi being the elected member of Town Panchayat, Kottur.
40. In so far as the Ex.P.36 relates to the whip issued to Mr.Anil Hosamani, respondent No.1 in the complaint, being the petitioner herein. It does not bears the signature of the said respondent no.1 in the complaint. But, it bears the signature of one Vinay Kumar. But, no document is produced to show in what way the said Vinay Kumar is related to the said respondent No.1. Therefore, it is crystal clear that the complainants have not produced any documents to show that it was duly served upon him.
41. In so far as Ex.P.37 is concerned, it pertains to the whip issued to Smt. Suma Manjunath Gouda, who is respondent no.3 in the complaint. It does not bear her signature or any one of the members of the family. But it discloses that the door number of the house of respondent No.3 and they have 58 not produced any documents to show that to which house the alleged notice of whip it is affixed. The alleged whip notice pertains to respondent No.3 was affixed on the door of respondent no.3. But it is not a valid service as contended by the learned counsel for the petitioners herein. Even though the photograph is produced it does not establish due service of notice.
42. In so far as Ex.P.38 is concerned, it is the alleged whip notice issued to Smt. Anusuya Sheregar, respondent no.4 in the complaint. It also does not bear her signature nor the signature of any member of family, door number of her house was not mentioned. Even though the photographs have been produced but it does not establish due service. Therefore, the notices on her is not accepted as this contention was also taken by the learned counsel for the respondents.
43. In so far as Ex.P.39 is concerned, is a whip relating to Smt. Sumakka Durugappa, who is respondent No.5 in the complaint, it also does not bear her signature. But it 59 contains the signature of one Santosh whereas the complainants have not produced any documents to show that in what way the said Santosh is related to her. Thus it is crystal clear that the alleged whip is not served on the respondent No.5 to accept it as due service.
44. Ex.P.41 relating to the whip notice issued to respondent No.6 in the complaint-Sri S. Gurushantappa. It also does not bear his signature but it contains the signature of somebody and by seeing the said signature it cannot be identified as to whose signature it is. The complainants have not produced any documents to show that in what way the said person's signature is related to respondent No.6. From this, it is crystal clear that the alleged whip notice is not deemed service upon respondent No.6. Whereas Ex.P.41 is the whip served upon one Prabhudeva-respondent No.7 does not bear the signature of respondent No.7 or any member of his family, the photograph shows the affixture of whip to the door of the 60 house of respondent No.7. But, it does not establish due service of notice of whip.
45. Ex.P.43 is the whip notice issued to Smt. Asha Begum- respondent No.8. It also does not bear her signature. But, it bears the signature of one Nabisab. The complainants have not produced any documents to show that how the said Nabisab is related to respondent No.8. The complainant again contend that they have proved that the whip is served on the family members of respondent No.8.
46. Ex.P.46 relates to the whip notice issued to Sri Kotrappa-respondent No.5 but Ex.P.46 does not bear the signature of such respondent No.9 but it contains the signatures of one Laxmi but the complainants have not proved or produced any documents to show that in what way the said Laxmi is related to respondent No.9. The complainants again contend that they have proved that the whip notice pertains to respondent No.9 is served on the family members. The aspect with regard to service of whip 61 was also incorporated in detail in the impugned order passed by the respondent No.1-Deputy Commissioner, Ballari district, relating to the service of whip upon them. But, at a cursory glance of the aforesaid whip notices which are marked as Exs.P.35, 37, 38, 39, 41, 42, 43 and 46 relate to respondents 1 to 9 (petitioners herein) do not contain their signatures.
47. In so far as affixture of the whip notices which are marked as Ex.P.37, 38 and 42 are concerned, affixed on the doors of the respondents 3, 4 and 7 are concerned, it is relevant to state that there is absolutely no evidence to show that the aforesaid notices are affixed on the residential houses of the said respondents 3, 4 and 7/petitioners herein. Therefore, the alleged whip notices are not at all served on any of the respondents. This contention was also taken by the learned senior counsel appearing for the petitioners during the course of his arguments advanced stoutly as the evidence put forth by the complainants in order to establish 62 their cases against the petitioners herein seeking disqualification of their membership that they were casting vote against the fielded candidates by the Congress party, it is found to be clouds of doubt.
48. Whereas the authorization issued by the President, KPCC dated 27.04.2016 it is marked as Ex.P.51 shows that Sri.N.S. Bosaraju, MLC and General Secretary, KPCC, was authorized to delegate the power to President, BDRCC- Sri.B.V. Shivanna (Shivayogi) to issue party direction in the form of whip to the elected members of the INC of Kottur, Town Panchayat. But, Ex.P.51 reflects that Sri. N.S. Bosaraju, General Secretary who has further delegated the power to issue direction in the form of whip to Sri B.V.Shivanna (Shivayogi), the President of BDRCC.
49. The respondents in the proceedings being the petitioners herein have also taken the contention that the power delegated to the General Secretary, KPCC, cannot be further delegated to the President, BRDCC. But, the General 63 Secretary, KPCC, Bengaluru, had delegated the limited power to further delegate to Sri B.V. Shivanna (Shivayogi), President, BRDCC, to issue party whip. There is no infirmity in the action of the General Secretary in delegating the power, is the contention taken by the learned senior counsel appearing for the respondents herein but the same is countered by the learned senior counsel appearing for the petitioners by urging various grounds which are taken into consideration relating to resolution no. 3 as well as the authorization issued by the President, KPCC dated 27.04.2017 at Ex.P.51 and Ex.P.51, reflect that the General Secretary who has further delegated the power to issue direction in the form of whip to Sri B.V.Shivanna (Shivayogi), the President of BRDCC, which is contrary to the context of the resolution No.3.
50. Keeping in view that the contention taken by the learned senior counsel appearing for the petitioners herein as well as the learned senior counsel appearing for the respondents, that it is established principles of law that the 64 delegatee cannot delegate his power further, unless it is empowered in that behalf. The same has been considered in W.P. No. 21381 and 21463-67/2015 and W.P. No. 11286/2016 dated 29.03.2016 by this Court and so also in W.A. Nos. 847/2016 and 848/2016 dated 22.06.2016 wherein the similar KPCC resolution no. 3 and sub delegation were discussed at length and this Court had also made some observations.
51. The petitioners have also taken contention that it is well established principles of law that Under Order V Rule 20 of Civil Procedure Code, after exhausting the mode of service of notice that by attempting to service of notice by personal delivery or through RPAD, definitely the service of notice by affixture should be adopted keeping in view the aforesaid provision of the CPC. But this contention of the petitioners has been rebutted by the complainants/ respondents herein pleading that form of acceptance was proved that the mode of service of notice has been done in the manner known to law. 65 It is further contended that Sec. 114 of the Indian Evidence Act provides that if party does not enter into the witness box to establish their case relating to service of notice, adverse presumption has been drawn against that party in support of it. The complainant cited the following citations of the Apex Court and this aspect was also incorporated in the impugned order passed by the respondent No.1-Deputy Commissioner, Ballari.
52. However, keeping in view the contention which is taken by the learned senior counsels appearing for the parties in these writ petitions it is relevant to state that the object of INC is the well being and advancement of the people of India and the establishment in India by peaceful and constitutional means of Socialistic State based on parliamentary democracy in which there is equity and opportunity and of political democracy and social rights, this is the main object of constitutional and rules of INC, it is in the inception it is indicated.
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53. However, keeping in view the object and scope of the constitution of INC as Article 1-issuance of whip by an official of political party appointed to maintain parliamentary discipline among its members established so as to ensure attendance and voting in debates. Whereas in these writ petitions the whip was issued by the competent authority of a political party regarding attendance and voting for the election to the post of Adhyaksha and Upadhyaksha of Kottur Town Panchayat fielded official candidates but the contents of the whip do not also contain any recital specifically out of the existence of any such authorization which also goes to show that there was no such authorization given. But, in the instant writ petitions the core issues relating to the delegation and sub-delegation of power relating to issuance of whip to the elected members of the Town Panchayat for the post of Adhyaksha and Upadhyaksha be fielded by the official candidates, but the petitioners herein said to be voting against the whip issued by the competent authority of official political party for casting vote in favour of the official 67 candidates be fielded for the post of Adhyaksha and Upadhyaksha. The respondents 3 to 7 herein have filed complaints before the Tahasildar, Kudligi, wherein he has forwarded the complainant to the concerned Deputy Commissioner-respondent No.1 herein, to initiate proceedings and proceeded with against the elected members of the Town Panchayat, Kottur, being the petitioners 1 to 9 herein and passed the impugned order which is questioned in these writ petitions by urging various grounds.
54. But, in the case on hand the so called whip allegedly issued by the complainant B.Shivanna @ Shivayogi in Election Petition No. 22/2016-17 who is said to be the President of Ballari Rural District Congress Committee, that is, INC, but it was not at all served on any of the respondents either prior to 07.05.2016 or on 07.05.2016 as duly serving the whip notice issued to the petitioners 1 to 9/ respondents in the aforesaid complaint proceedings as Case No. 22/2016-
17. Whereas the complainant has not produced any 68 materials to show that the alleged whip issued by the complainant in this complaint case was served on any of the petitioners 1 to 9 herein, as a matter of fact that the alleged whip issued by the complainant being a responsible person to be the President of BRDCC, i.e., INC, as the issuance of whip it has not been duly served upon any of the petitioners herein. The said contention taken by the learned senior counsel appearing for the petitioners herein has substance, in my opinion. But, complaining of disqualification u/S 3(1)(b) of the Act having been incurred by the respondents herein being the complainants as in the complaint proceedings in Nos. 15/2016-17 and 22/2016-17 to the respondent No.1- Deputy Commissioner of Ballari District, Ballary, after holding the enquiry, arrived at a finding by upholding the complaint and declaring the petitioners herein disqualified from the membership of the Town Panchayat, Kottur. But, Sec. 3(1)(b) of the Act, does not provide for when and how such authorization shall be given, i.e., mode of authorization specifically be issued by the concerned competent authority of 69 the official political party but the provision contemplates is that there must be any person or authority authorized in this behalf by the official political party. The language of the resolution it was passed by the concerned official party to maintain discipline among its members shall be so as to ensure attendance and voting in debates. But, in the instant case the members should attend for casting their vote to the official candidate fielded by the concerned authority for the post of Adhyaksha and Upadhayaksha of Kottur, Town Panchayat, Ballari District, Ballari. But, the issuance of whip by the official political party, should specify the requirement of Sec. 3(1)(b) of the Act as in view of the specific authorization given in this behalf.
55. Whereas at a cursory glance of the evidence adduced by the complainant in order to establish their case against the petitioners 1 to 9/ respondents in the complaint proceedings No. 15/2016-17 and 22/2016-17 as the proceedings it has held before the respondent No.1/Deputy Commissioner of 70 Ballari District, Ballari, relating to the allegations made in the complaint it has filed by the responsible elected members of the Kottur, Town Panchayat. But, the issuance of whip and service of notice of whip to the elected members, i.e., petitioners herein, are found to be camouflage, such as clouds of doubts, as wherein these petitioners being the elected members of Town Panchayat, Kottur, 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, Ballari, but the voters of the concerned ward/ constituency of Kottur, Town Panchayat, Kottur, as voters have elected their members by casting vote for the welfare of 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.1-Deputy Commissioner disqualifying the 71 petitioners herein is not sustainable in law and also on facts. The Deputy Commissioner-respondent No.1 is unjustified in passing the impugned order disqualified the petitioners herein without meticulously considering the scope and object of Sec. 3(1)(b) of the Act. Hence, the following order is passed.
ORDER Writ petitions filed by the petitioners herein are hereby allowed. The impugned order passed by the respondent No.1- Deputy Commissioner, Ballari District, Ballari, in Appeal Nos. 15/2016-17 and 22/2016-17 dated 03.06.2017 vide Annexure-G, is hereby quashed.
Registry shall be directed to return the original records of the case to the concerned, forthwith.
SD/-
JUDGE bvv