Karnataka High Court
Shri Suresh S/O Annasaheb Udagave vs The State Of Karnataka on 21 April, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 105239 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 21ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 105239 OF 2021 (LB-RES)
BETWEEN
1. SHRI SURESH S/O ANNASAHEB UDAGAVE
AGE. 53 YEARS, OCC. AGRICULTURE
R/O. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI, PIN 591239
2. SHRI MAHABOOB MEERASAB KALE
AGE. 57YEARS, OCC. MAISEN
R/O. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI, PIN 591239
3. SMT. NOUSHADBI W/O ABUBAKKAR MUJAVAR
AGE. 64 YEARS, OCC. HOUSEHOLD WORK
R/O. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI, PIN 591239
4. SMT.SUJATA W/O SURESH KUMBAR
AGE: 31 YEARS, OCC:HOUSEHOLD WORK
R/O SADALAGA, TQ: CHIKODI,
DIST: BELAGAVI, PIN 591239
...PETITIONERS
(BY SRI.SHIVARAJ P MUDHOL, ADVOCATE
AND SRI.ANAND BAGEWADI, ADVOCATE)
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WP No. 105239 of 2021
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
M.S.BUILDING, BENGALURU-560001
2. THE DEPUTY COMMISSIONER
BELAGAVI, DIST. BELAGAVI
PIN 590001
3. THE TOWN MUNCIPAL COUNCIL
AT. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI, PIN 590001
4. TAHASILDAR CHIKKODI AND RETURNING OFFICER
ADYAKSHA AND UPA ADYAKSHA
OF TOWN MUNICIPAL COUNCIL SADALAGA
TQ. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI-590001
5. THE PRESIDENT
CHIKKODI DISTRICT BHARATIYA JANATA PARTY
CHIKKODI, TQ. CHIKKODI, DIST. BELAGAVI
PIN. 590001
6. SRI.ANAND S/O DEVAGOUDA PATIL
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. SADALAGA, TQ. CHIKODI, DIST. BELAGAVI
PIN 590001
7. SHRI HEMANT S/O MAYAPPA SHINGE
AGE. 51 YEARS, OCC. AGRICULTURE,
R/O. SADALAGA, TQ. CHIKODI
DIST. BELAGAVI, PIN 590001
...RESPONDENTS
(BY SMT.K.VIDYAVATHI, ADDL. ADVOCATE GENERAL, FOR R1, 2 &4,
SRI.SHARAD V MAGADUM, ADVOCATE FOR R3,
SRI.JAYAKUMAR S PATIL, SENIOR COUNSEL
FOR SRI.MRUTYUNJAYA TATA BANGI AND SRI.S.S.YALIGAR,
ADVOCATES FOR R5 & C/R6 & R7)
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WP No. 105239 of 2021
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE
OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
28/10/2021 IN NO.BGM/DUDC/CR/38/2020-21 PASSED BY THE 2ND
RESPONDENT VIDE ANNEXURE-A. 2. TO DECLARE THAT ENTIRE
PROCEEDINGS INITIATED BY THE 2ND RESPONDENT
BGM/DUDC/CR/38/2020-21 VIDE ANNEXURE-A IS WITHOUT
AUTHORITY OF LAW AND WITHOUT JURISDICTION. 3. TO ISSUE
DIRECTION TO THE RESPONDENTS TO PERMIT THE PETITIONERS TO
CONTINUE TO DISCHARGE THEIR DUTIES AS HAS BEEN
DISCHARGING PRIOR TO PASSING OF THE IMPUGNED ORDER.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR 'PRONOUNCEMENT OF ORDER', THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
1. To issue writ in the nature of certiorari to quash the impugned order dated 28/10/2021 in no.bgm/dudc/cr/38/2020-21 passed by the 2nd respondent vide annexure-a.
2. To declare that entire proceedings initiated by the 2nd respondent bgm/dudc/cr/38/2020-21 vide annexure-a is without authority of law and without jurisdiction.
3. To issue direction to the respondents to permit the petitioners to continue to discharge their duties as has been discharging prior to passing of the impugned order.-4- WP No. 105239 of 2021
2. Vide Annexure-A the petitioners have been disqualified from the post of the Councilors held by them in Sadalaga Town Municipal Council.
3. The petitioners were elected as councilors of the Town Municipal Council, Sadalaga Town, Chikodi Taluk, Belagavi District, in the elections held in the year 2018. All the petitioners were elected under the symbol of Bharatiya Janata Party (BJP) they being the official candidates of BJP. In the elections held for the post of Adhyaksha and Upa-Adhyakhsa on 02.11.2020, petitioner No.1 contested for the post of Adhyaksha and was elected for the said post with petitioner Nos.2 to 4 having cast their votes in favour of petitioner No.1.
4. The petitioners contend that there was no whip which has been issued by the BJP or no whip has been served on the petitioners. Petitioner No.1 wanting to contest for the post of Adhyaksha had filed his nomination for the said post. There were two other -5- WP No. 105239 of 2021 candidates namely Anand Devagouda Patil and Abijeet Dadasab Patil who had filed their nomination papers as BJP candidates for the post of President. Later on, Anand Devagouda Patil withdrew his nomination.
5. Insofar as post of Vice-President/Upa-Adhyaksha is concerned, there was no nomination filed by any official candidate of the BJP. However, an independent candidate Basavaraj Shankar Hanabar had filed his nomination who was proposed by Prashant Mahadev Karangale a BJP councillor and another candidate namely Sadashivappa Valake had filed his nomination for the post of Vice President/Upa-Adhyaksha. Upon vote being cast, Sadashivappa Valake was elected as the Upa- Adhyaksha.
6. After the declaration of election results the petitioners claim that respondent No.2-Deputy Commissioner had issued show-cause notice on -6- WP No. 105239 of 2021 19.11.2020 after a period of 17 days from the election calling upon the petitioners to show-cause why they ought not to be disqualified as per Section 4(1)(b) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, 'Act') on or before 26.11.2020.
7. It is claimed that the said notice was issued based on a complaint filed by the President of BJP, Chikodi unit alleging that a whip which had been issued by the said authority had been violated by the petitioners and therefore the said President had called upon respondent No.2-Deputy Commissioner to initiate proceedings under the aforesaid Act. The petitioners having appeared before the Deputy Commissioner, the Deputy Commissioner has passed the impugned order.
8. The petitioners had, prior to the said order being passed, filed Writ Petition No.148736/2020 questioning the proceedings, however no interim -7- WP No. 105239 of 2021 order was granted. Hence, Writ Appeal No.100156/2020 was filed. The Division Bench stayed the proceedings and remanded the matter to the learned Single Judge. The learned Single Judge after hearing the matter dismissed the said proceedings on 21.06.2021. Thereafter another Writ Appeal No.100136/2021 came to be filed which was disposed of by the Division Bench vide its order dated 28.07.2021 directing the Deputy Commissioner, Belagavi to provide sufficient opportunity to both the parties of being heard and then pass orders. It is in pursuance thereof, that the proceedings were taken up by respondent No.2- Deputy Commissioner and the impugned order passed, which has been challenged before this Court.
9. Sri.Shivaraj P Mudhol, learned counsel for the petitioners submits that:
9.1 The complaint which has been filed by the President of BJP with Deputy Commissioner is -8- WP No. 105239 of 2021 not in accordance with the applicable law, inasmuch as there is violation of Section 4 of the Act, the complaint was though directed to the Chief Officer, the Chief Officer had forwarded the same to the Project Director in the Office of the Deputy Commissioner, instead of forwarding it to the Deputy Commissioner.
The Project Director having in turn forwarded the complaint to the Deputy Commissioner, there is a violation of the procedure prescribed. The Deputy Commissioner could not have exercised jurisdiction over the said complaint. 9.2 There was no whip that had been issued to the petitioners. Hence, there can be no violation of an alleged whip that was not even issued to the petitioners. The whip claimed to have been affixed on the door of the petitioners was so affixed by a person who was not so authorized to do so. Inasmuch as the affixture was carried -9- WP No. 105239 of 2021 out by a member of the party who was not authorized to issue a whip.
9.3 There is no procedure that has been prescribed permitting the affixture of the whip. Therefore, the question of the same being taken into consideration would not at all arise. 9.4 The claim of the President that there was a meeting that took place on 01.11.2020 during which meeting a discussion as regards official candidate of the party was discussed is incorrect. Be that as it may, he submits that the petitioners had not attended the said meeting. Hence, the question of service of the whip would not arise. Alternatively, the question of serving the whip dated 02.11.2020 in the meeting held on 01.11.2020 would not arise.
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WP No. 105239 of 2021 9.5 In the matter relating to disqualification of an elected member, he submits that strict rules have to be followed. Respondent No.2-Deputy Commissioner has violated all the applicable rules as devised under the Act and therefore the petitioners cannot be disqualified on the basis of the actions taken by the Deputy Commissioner which is not in accordance with the applicable rules.
9.6 The elections have taken place on 02.11.2020, the complaint having been filed on 03.11.2020, it is premature in terms of Section 4(1)(b) of the Act. Any action that has to be taken in terms of Section 4(1)(b) of the Act has to happen only after the expiry of 15 days. The action having been taken by the President on the very next date of the election being contrary to the Act, the entire proceedings are to fail.
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WP No. 105239 of 2021 9.7 He relies upon the decision in Babu Verghese and Others vs. Bar Council of Kerala and Others [(1999) 3 SCC 422], more particularly, paragraph Nos.31 and 32 thereof, which are reproduced hereunder for easy reference:
31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) Ch. D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor AIR 1936 PC 253 who stated as under :
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh. vs. State of V.P. AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan AIR 1961 SC 1527. These cases were considered by a Three-Judge Bench of this Court in State of U.P. vs. Singhara Singh. AIR 1964 SC 358 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law. 9.8 Relying on the aforesaid decision, he submits that when a thing has to be done in a particular
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WP No. 105239 of 2021 manner it is required to be done in that manner or not at all. In the present case, no action could have been taken within 15 days and that being contrary to the applicable law, the said action needs to be quashed.
9.9 He relies upon the decision in Padma Sundara Rao (dead) and Others vs. State of T.N. and Others [(2002) 3 SCC 533], more particularly, paragraphs Nos.12, 13, 14 thereof which are reproduced hereunder:
12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature.
The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
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WP No. 105239 of 2021
13. In Dr.R Venkatchalam. vs. Dy.Transport Commr. (AIR 1977 SC 842) it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre- conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]. `The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's case (supra). In Nanjudaiah's case (supra), the period was further stretched to have the time period run from date of service of the High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.
9.10 Relying on the above decision, he submits that the Deputy Commissioner as also this Court would have to apply the statutory provision in its plain and unambiguous manner. Neither the Deputy Commissioner nor this Court can read into the Act any particular requirement or
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WP No. 105239 of 2021 otherwise. The language employed in the statute is a determinative factor of legislative intent and on that basis, he submits that the statute is required to be given full effect and any action taken contrary to the statute is required to be declared unlawful.
9.11 He also relies on the decision in Sadashiv H Patil vs. Vithal D Teke and Others [(2000) 8 SCC 82]. More particularly, paragraph No.14 of the said judgement which is reproduced hereunder for easy reference:
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.
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WP No. 105239 of 2021 9.12 Relying upon the same, he submits that a finding of the disqualification on an order of disqualification has the effect of unseating a person from an elected office to which he has been elected. Therefore, there has to be strict compliance with all applicable provisions. 9.13 He relies on the decision in Smt.Hemalata Suguresh Nagaloti and Another vs. Deputy commissioner, Bagalkot [2017 SCC Online KAR 1357], more particularly, paragraph No.29 thereof which is reproduced hereunder for easy reference:
29. Even otherwise, the factual aspects of this case disclose that there was no personal service of the whip on the petitioners, though P.W.2 and P.W.6 by leading evidence made an attempt to establish before the Deputy Commissioner to show that the whip has been duly served but the fact remains that personal actual service of the whip is not shown to have been made on the petitioners. Even accepting that a notice has been affixed on the conspicuous place of the house of the petitioners, unless it is established that the said whip or notice was well within the knowledge of the petitioners, it cannot be held that the same has been duly served. Even otherwise, at the time of meeting, to elect the President and the Vice President of Ilkal Municipal Council, there was an attempt to serve the
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notice in the presence of the Assistant Commissioner who is the competent authority to conduct the election. It is there in the evidence that the Assistant Commissioner that, he did not allow to serve the said whip on the petitioners at that time. 9.14 Relying upon the same, he submits that what is required is a personal service of a whip, without there being actual service of the whip an affixture at a conspicuous place cannot be said to be service of the whip.
9.15 He relies upon another decision in Ravi Yashwant Bhoir vs. District Collector, Raigad and Others [(2012) 4 SCC 407], more particularly, paragraph Nos.34 to 37 thereof which are reproduced hereunder for easy reference:
34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed.
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WP No. 105239 of 2021
35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983; Mohan Lal Tripathi v. District Magistrate, Rai Barelly, AIR 1993 SC 2042; and Ram Beti v. District Panchayat Rajadhikari, AIR 1998 SC 1222).
36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/electoral college is also deprived of representation by the person of his choice.
37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like `No Confidence Motion' etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period.
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WP No. 105239 of 2021 9.16 Relying upon the same, he submits that whenever a person is elected to a particular office, it is required that the tenure of that person by the elected terms is protected. If there is any removal of such a person, the principles of natural justice have to be followed. Without following the same no such removal can happen. Even the removal in exceptional circumstances, the mandatory requirement of the Act has to be satisfied by following the Act, if there is no such requirement satisfied, no removal can be made.
9.17 There is bias on the part of the Deputy Commissioner, inasmuch as the entire proceedings have been conducted by the Deputy Commissioner at the behest of the ruling party. As an example he submits that the order sheet for the date 25.08.2021 has been manipulated, inasmuch as on 25.08.2021 the
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WP No. 105239 of 2021 matter had been adjourned to 7th September 2021. The petitioner applied for and obtained a certified copy on 25.08.2021 which was issued on 31.08.2021 which discloses that the order sheet ends with an adjournment to 7th September, 2021. But, however the order sheet which has been produced by the respondents would indicate that even after the said adjournment there is a recordal of further proceedings which have been made. Thus, he submits that there is sufficient material to establish bias on the part of respondent No.2- Deputy Commissioner. There being bias, the petition is required to be allowed and the reliefs sought for are to be granted.
10. Sri.Jayakumar S Patil, learned Senior counsel appearing for Sri.Mrutyunjaya Tata Bangi and Sri.S.S.Yaligar, learned counsels for respondent
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WP No. 105239 of 2021 Nos.5, 6 and 7 i.e. a President of the party and two other complainants submits that:
10.1 In terms of Section 4(1)(b) of the Act what is required is that action is not to be taken within a period of 15 days. That applies to the Deputy Commissioner and not to the complainant.
Though the complainant had filed complaint on 03.11.2020, the notice was issued only on 19.11.2020 which is after a period of 15 days. Therefore, the action taken after a period of 15 days does not fall foul of Section 3(1)(b) of the Act.
10.2 The period of 15 days prescribed in the said provision is a cooling of period to enable the party to condone any action which has been taken by any of the members of the said party or any elected members of the party. In the present case, there is no such condonation that has happened or could happen since the
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WP No. 105239 of 2021 petitioner No.1 had stood for the election of the President against the official candidate of the party and the other petitioners have voted for petitioner No.1 without voting for the official candidate of the party. Therefore, there being no condonation that can occur, the 15 days period is not material. The very action not being condonable there is no requirement to wait for a period of 15 days.
10.3 Alternatively, respondents Nos.6 and 7 have filed separate complaints on 29.07.2021 and the said complaints have been taken into consideration and acted upon by the Deputy Commissioner. This complaint dated 29.07.2021 being beyond a period of 15 days there is no violation of Section 4(1)(b) of the Act.
10.4 On enquiry, he submits that respondent No.2 has taken action on both the complaints,
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WP No. 105239 of 2021 namely complaint by respondent No.5 dated 03.11.2020 as also on the complaint of respondents Nos.6 and 7 dated 29.07.2021. 10.5 Respondent No.2 has acted in accordance with law and there is no motivated action on the part of respondent No.2 as regards forwardal of the complaint. In a matter of course, the Chief Officer has forwarded the complaint to the Project Director who has in turn forwarded the same to the Office of the Deputy Commissioner, forwarding of all correspondence is normal, since the Project Director is the nodal authority or nodal officer in the office of the Deputy Commissioner. The Project Director is only a conduit. The complaint having reached the Deputy Commissioner, the Project Director not having taken any action as such on the complaint, there is no violation of Section 4 of the Act. What is required is only for the Chief
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WP No. 105239 of 2021 Officer to forward the complaint to the Deputy Commissioner. Merely because it is routed through the Project Director, there is no violation.
10.6 The second complaint dated 29.07.2021 has been forwarded by the Chief Officer directly to the Deputy Commissioner. Therefore this argument would not at all arise in respect of the said complaint.
10.7 He submits that the decisions relied upon by the petitioners are not applicable to the present case. He relies upon the following decisions. 10.8 The judgment of the Hon'ble Supreme Court in the case of Narasingh Das Tapadia Vs. Govardhan Das Partani & Others reported in 2000(7) SCC 183, more particularly, paragraphs 10 and 11 thereof, which are reproduced hereunder for easy reference:
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"10. Mere presentation of the complaint in the court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Again this Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, dealt with the issue and observed: (SCC p. 257, para 14) "What is meant by 'taking cognizance of an offence' by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1).
Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have
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WP No. 105239 of 2021 taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence."
11. In the instant case mere presentation of the complaint on 8-11-1994 when it was returned to the appellant-complainant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the Magistrate taking cognizance within the meaning of Section 142 of the Act. The High Court appears to have committed not only a mistake of law but a mistake of fact as well. No cognizance was taken on 8-11-1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17-11-1994. The learned Judge of the High Court, without reference to various provisions of the Act and the Code of Criminal Procedure, wrongly held thus:
"The date of filing i.e. 8-11-1994 in this case is crucial. The return of the complaint filed by the respondent to comply with some objections and subsequent filing on 17-11-1994 in this case does not have any effect.
Therefore, the complaint is
premature and is liable to be
dismissed."
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WP No. 105239 of 2021
10.9 Relying upon the above, he submits that, even if a complaint is found to be premature, it can await maturity or be returned for filing by the complainant later. Mere presentation at an earlier date would not make the complaint liable to be dismissed, applying the same to the present facts he submits that, merely because a complaint is filed on 03.11.2020 by the President to the Authority, the same would not be required to be dismissed, since the Deputy Commissioner has waited till 19.11.2020 to issue notice, which is after the period of 15 days prescribed under Section 4 of the Act.
10.10 He further relies upon the decision in the case of Sadashiv H. Patil Vs. Vithal D. Teke & others reported in 2000 (8) SCC 82. More particularly, para 12 there of which is reproduced hereunder for easy reference:
12. At meeting of Janta Aghadi Councillors of Vita Municipal Council was convened to take place at 4
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WP No. 105239 of 2021 p.m. on 16-12-1997. The appellant, Sadashiv Hanmantrao Patil elected as "paksha pratod", i.e., party spokesman. It is not disputed that the meeting was attended by Vithal Dhondiram Teke, Badshah Akbar and Smt Lakmibai Wamen Chothe, Respondents 1, 2 and 3. It was resolved that Nandkumar Baburao Patil shall be the official candidate of Janta Aghadi for the post of president and the appellant, Sadashiv Hanmantrao Patil shall fill in the nomination form as a substitute candidate. In spite of such resolution Vithal Dhondiram Teke, Respondent 1 filed his own nomination for the post of president proposed by Badshah Akbar Tamboli, Respondent 2. Nandkumar B. Patil and Sadashiv H. Patil also filed their nominations as the primary and substitute candidates for the post of the president as resolved in the meeting of municipal party of Janta Aghadi. On 15-12-1997, two directions popularly known in the political parlance as whip, were issued. One direction was issued to Vithal Dhondiram Teke, Respondent 1 and Badshah Akbar Tamboli, Respondent 2 asking them to withdraw the nomination and the proposal respectively for candidature of Respondent 1 for the post of president as having been filed in violation of the resolution passed at the meeting of municipal party of Janta Aghadi. This direction bears the signatures of one Hanumant Rao who claims to be the leader of the political party known as Janta Aghadi, Vita. It is also signed by Sadashiv Patil, the appellant in the capacity of Janta Aghadi chief/leader of municipal party. Another direction (whip) dated 15-12-1997 was issued to all the municipal councillors of Janta Aghadi directing them to remain present at the meeting of Vita Municipal Council scheduled to be held on 16-12-1997 and to cast vote in favour of the authorised candidate nominated by Janta Aghadi, namely, Nandkumar Baburao Patil. This
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WP No. 105239 of 2021 whip is signed by the appellant, Sadashiv Hanumantrao Patil in the capacity of party leader, Janta Aghadi, Vita. These whips were served on all the 12 councillors belonging to Janta Aghadi. Copies of the whips were served on the Sub- Divisional Officer who was to conduct the elections in question and were also pasted on a board placed at the entrance of the meeting hall. The validity of the nomination filed by Respondent 1 was objected to on the ground of defiance of the whips issued by Janta Aghadi but the objection was overruled. The election was held. Nandkumar Patil, the official candidate of Janta Aghadi received 9 votes as against 10 votes received by Vithal D. Teke, Respondent 1. He was declared elected as President of the municipal council. The Respondents 1, 2 and 3 voted for Respondent 1. A meeting of Janta Aghadi was held on 19-12-1997. It was unanimously resolved not to condone the defiance of whip by Respondents 1, 2 and 3. The appellant and two other members of Janta Aghadi made a reference for disqualifying respondents 1, 2 and 3 from the membership of the municipal council under Section 3 of the Act. After affording Respondents 1, 2 and 3 an opportunity of hearing and holding an inquiry as contemplated by the Act and the Rules, the Collector declared Respondents 1, 2 and 3 disqualified under the provisions of the Act. The three respondents preferred three writ petitions before the High Court which have been heard and disposed of by a common order impugned in these appeals. The High Court has allowed the writ petitions and quashed the order dated 22-6-1998 passed by the Collector. 10.11 Though the other judgments in Emkay Global Financial Services Vs. Giridhar Sondhi
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WP No. 105239 of 2021 reported in 2018(9) SCC 49 and Jagjeet Singh Lyallpuri Vs. Unitop Apartments and Builders Ltd., reported in 2020 (2) SCC 279, have been produced, learned Senior Counsel does not rely on the said decisions. He submits that there is no specific procedure which has been prescribed for affixation of whip. The affixation made is sufficient compliance, since the petitioners are deemed to be knowledgeable about the whip having been affixed on the door of their house.
10.12 In the above background, he submits that, there being a meeting which took place on 01.11.2020, the whip having been conveyed to the petitioners on the said date, the whip having been affixed on the house of the petitioners, official candidates of the party having contested the election, it was but required for the petitioners to have voted in
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WP No. 105239 of 2021 favour of the official candidates and it was not permissible for petitioner No.1 to have contested in the said elections. The very fact of contesting the election being in violation of the whip and petitioners No.2 to 5 having voted for petitioner No.1, they are required to be disqualified.
11. Smt. Vidyavathi Kotturshetter, learned Addl.
Advocate General, submits that:
11.1 The process and procedure, which was followed by respondent No.2-Deputy Commissioner, is proper and correct.
11.2 The complaint having been received on 13.11.2020 by the Chief Officer, the same had been forwarded to the Project Director, who in turn had put up the same to the Deputy Commissioner. The Deputy Commissioner has not taken any action on the said complaint until
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the expiry of 15 days, therefore there is no violation of Section 4 of the Act.
11.3 As regards the alleged manipulation of the order sheet dated 25.08.2021, she submits that there is no such manipulation, inasmuch as on 25.08.2021, the matter was adjourned to 07.09.2021 and on 07.09.2021, respondents No.1 to 4 therein had filed a memo, the same was taken on record, copies served on the complainants and the matter was adjourned to 21.09.2021. Inadvertently the caseworker has not entered the date of 07.09.2021 at the relevant place. That is a mistake that has been committed by the caseworker. There is no interpolation or manipulation of the order sheet. 11.4 To support her submission, she refers to a memo which has been filed by the petitioners on 07.09.2021, wherein several documents had been produced by the petitioners who were the
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WP No. 105239 of 2021 respondents therein. She submits that, thereafter on 21.09.2021, further proceedings were conducted and that reference is found at the bottom of the said order sheet. Therefore, she submits that there is no manipulation. There is an inadvertent error or mistake committed by the caseworker which does not create any equities in favour of the petitioners nor does it amount to any gross violation inasmuch as the petitioners are aware of the adjournment on 25.08.2021 to 07.9.2021 and from 07.09.2021 to 21.09.2021, the petitioners having participated in all those proceedings. 11.5 As regards framing of rules to the Act of 1987, she submits that rules would be framed as expeditiously as possible, which this Court believes would be within a period of six months from today. This Court hopes and believes that the said rules are framed within the said period
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WP No. 105239 of 2021 so as to avoid the averments being made, since no rules have been formulated in this kind of matters and for proper procedure to be prescribed by the rules so that there is no requirement for interpretation of the procedure. 11.6 Irrespective of the rules not having been framed, the authorities have acted in terms of the Act, there being a violation of a whip and a complaint received by respondent No.2 -Deputy Commissioner, he has exercised the powers after providing necessary opportunities to all the parties concerned to lead their evidence, cross-examine the witness and submit their arguments, which fulfils the requirements of principles of natural justice. Therefore, she submits that the writ petition does not make out any grounds and is required to be dismissed.
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12. In rejoinder, Sri. Shivaraj Mudhol, learned counsel for the petitioner submits that:
12.1 The Chief Officer has not signed the forwarding letter. It has been signed on his behalf and the letter was forwarded to the Project Director.
Therefore, he submits that Chief Officer has not discharged his obligations, which goes to the root of the matter.
13. Sri. Sharad V. Magadum, learned counsel for respondent No.3 adopts the submission of learned Addl. Advocate General.
14. Heard Sri. Shivaraj P. Mudhol, learned counsel for the petitioner, Sri.Jayakumar S. Patil, learned Senior Counsel for respondents No.5 to 7, Smt. Vidyavathi Kotturshetter, learned Addl. Advocate General for respondents No.1, 2 and 4 and Sri. Sharad V. Magadum, learned counsel for respondent No.3.
15. Points for consideration:
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i. Whether the complainant has to wait for a period of 15 days to submit a complaint i.e. to say whether a period of 15 days is mandatory before filing of the complaint or could a complaint be filed prior to the expiry of 15 days of the occurrence of cause of action?
ii. Whether in this particular case, the petitioners have been able to establish bias on the part of respondent No.2- Deputy Commissioner?
iii. What order?
16. The issue of defection has plagued our democracy for quite some time. One of the earliest decisions relating to the said matter being a constitutional bench judgement in Kihoto Hollohan vs. Zachillhu and Others in 1992 Supp (2) SCC 651 in paragraph Nos.4, 5, 6, 7, 8, 32, 33, 35, 49, the Hon'ble Apex Court observed as under:
4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule. The Statement of Objects and Reasons appended to the Bill which
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was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:
"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance."
5. On December 8, 1967, the Lok sabha had passed an unanimous Resolution in terms following:
"a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard."
6. The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter-alia, observed:
"Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors,
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indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections".
(emphasis supplied)
7. The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.
8. Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty-Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.
32. But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements?
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33. The points raised in the petitions are, indeed, far-reaching and of no small importance - invoking the `sense of relevance of constitutionally stated principles to unfamiliar settings'. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. there is the legislative determination through experimental constitutional processes to combat that evil.
35. All distinctions of law - even Constitutional law - are, in the ultimate analyses, "matters of degree". At what line the `white' fades into the `black' is essentially a legislatively perceived demarcation.
49. Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct-- whose awkward erosion and grotesque manifestations have been the base of the times - above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end..." are constitutional.
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17. The guiding principles laid down by the Hon'ble Apex Court in Kihoto Hollohan's case have been followed by the Hon'ble Hon'ble Apex Court as also the High Courts from time to time. Essentially anti-defection law serves the purpose of restraining an elected representative from changing his party and/or vote against the party so as to enable the said party to act in unity. However, as observed by the Apex Court sometimes the same may also have the effect of stifling a member of the party. However, in the larger good as held by the Apex Court, it is required that all the members of the particular party act in unison.
18. In the present case, the petitioners are admittedly elected under the symbol of BJP and they are members of BJP. Though there was an official candidate of the BJP, petitioner No.1 also contested for the post of Adhyaksha in which petitioner Nos.2 to 4 cast their vote in favour of petitioner No.1
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WP No. 105239 of 2021 resulting in his victory and the loss of official candidate of the party.
19. These being the facts, what is required to be examined by this Court is the events leading up to the said occurrence and if the action on the part of the petitioners would amount to defection leading to disqualification in terms of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987.
20. The preamble of the Act reads as under:
An Act to prohibit defection by the Councillors of Municipal Corporations, [Municipal Councils, Town panchayats and Members of Zilla Panchayats and Taluk Panchayats] from the political parties by which they were set up as candidates and matters connected therewith.
Whereas, it is expedient to prohibit defection by the Councillors of Municipal Corporations [Municipal Councils and Town Panchayats and members of Zilla Panchayats and Taluk Panchayats] from the political parties by which they were set up as candidates and matters connected therewith;
Be it enacted by the Karnataka State Legislature in the Thirty-eighth Year of the Republic of India as follows:
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21. The Act does not by itself speak of defection but provides for disqualification on the occurrence of certain events.
22. In the present case, the complaint came to be filed by the President of the BJP to respondent No.2-Chief officer TMC, on the ground that the petitioners have acted contrary to whip which had been issued by him and therefore there is a violation of Section 3 of the Act and requested respondent No.2 to initiate necessary action.
23. Section 3 of the Act reads as under:
3. Disqualification on the ground of defection.-
(1) Subject to the provisions of sections 3A, 3B and 4]1, a councillor or a member, belonging to any political party, shall be disqualified for being such councillor or member,-
(a) if he has voluntarily given up his membership of such political party ; or
(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,
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person or authority within fifteen days from the date of voting or such abstention or absence; Explanation.- For the purposes of this sub-section,- (a) a person elected as a councillor, or as the case may be, a member, shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member;
(b) a person elected as a councillor or as the case may be, a member, otherwise than as a candidate set up by a political party shall be deemed to belong to the political party of which he becomes a member before the expiry of six months from the date of commencement of his term of office, or in the case of a councillor or member whose term of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995 within six months from such date.
(2) An elected councillor, or as the case may be, a member, who has been elected as such, otherwise than as a candidate set up by a political party shall be disqualified for being a councillor or, as the case may be a member if he joins a political party after expiry of six months from the date of commencement of his term of office, or in the case of a councillor or member whose term of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995, after expiry of six months from such date (3) x x x (4) Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a councillor shall,-
(a) where he was a member of a political party immediately before such commencement, be deemed for purposes of sub-section (1) to have been elected as a councillor as a candidate set up by such political party ;
(b) in any other case, be deemed to be an elected councilor who has been elected as such otherwise than
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WP No. 105239 of 2021 as a candidate set up by any political party for the purpose of sub-section (2).
3A. Disqualification on the ground of defection not to apply in case of split.- Where a councillor or a member makes a claim that he and any other members of his political party constitute the group representing a faction which has arisen as a result of a split in his political party and such group consists of not less than one-third of the members of such political party,-
(a) he shall not be disqualified under sub-section (1) of section 3 on the ground,-
(i) that he has voluntarily given up his membership of his political party ; or
(ii) that he has voted or abstained from voting in, or intentionally remained 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 in any case, the prior permission of such political party, person or authority and such voting or 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 ; and
(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purpose of sub-section (1) of section 3 and to be his political party for the purpose of this section. 3B. Disqualification on the ground of defection not to apply in case of merger.-
(1) A councillor or a member shall not be disqualified under sub-section (1) of section 3, where his political party merges with another political party and he claims that he and any other members of his political Party,-
(a) have become members of such other political party, or as the case may be, of a new political party formed by such merger ; or
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(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group. as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-section (1) of section 3 and to be his political party for the purposes of this section.
(2) for the purposes of sub-section (1) of this section,-
(a) the merger of the political party of a councillor or a member shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the political party concerned have agreed to such merger :
(b) the expression "such other political party" and "new political party" shall include a political party whether such political party has been recognised or not 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.
24. In terms of Section 3(1)(b) of the Act, if a person votes or abstains from voting contrary to a direction issued by any political party to which he belongs or by any person whose authority or by any person or authority authorized by it in his behalf without obtaining prior permission of such party person or authority and if the voting or abstinence has not been condoned by such political party person or authority within 15 days from voting or such
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WP No. 105239 of 2021 abstention or absence the same would lead to disqualification.
25. The complaint of the President is that a meeting had been held on 01.11.2020 wherein a discussion as regards the official candidate of the party was made, the name of the official candidate was finalized and it was agreed that all the elected members under the symbol of BJP would vote for such official candidate. The whip was issued in this regard and was affixed on the house of the petitioners as they did not collect the whip. The petitioners instead of following the directions of the President as also the whip which had been issued, petitioner No.1 stood for election.
26. What is to be seen is whether there was a communication of the instructions or the directions issued by the political party to the petitioners. There is a claim that there was a meeting held on 01.11.2020, however, no evidence has been produced as regards the said meeting. Except for the
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WP No. 105239 of 2021 people who attended the meeting stating that the petitioners had also attended it and the petitioners denying that they attended the meeting. There is no independent 3rd party corroborative evidence produced in this regard.
27. As regards the whip, what has been contended is that the whip has been pasted on the house of the petitioners since the petitioners did not accept the whip. The photographs which have been produced indicate that there were people present in the houses when the affixture was made. There is no particular mode prescribed under the Act or otherwise. It would have helped if there are rules framed to the Act that detail out these aspects, but however no rules have been framed since 1987 till now.
28. Be that as it may, the election was held on 02.11.2020 when an official candidate of the BJP had been identified. All the persons in the meeting and or the elections were aware of the official candidate it
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WP No. 105239 of 2021 was but required that the persons elected under that particular party symbol vote for the official candidate.
29. The contention of the petitioners that they were not informed and/or whip was not delivered and/or they did not know that they were required to vote for the official candidate cannot be countenanced either in law or facts.
30. Be that as it may, insofar as petitioner No.1 is concerned, he has contested the election. Before contesting the election it was required that petitioner No.1 obtain necessary approval from the party prior to announcing his candidature for the post of Adhyaksha. In the absence of approval by the party no member of a party can contest the election as a party member or otherwise.
31. In this particular case, the issue is also magnified by petitioner No.1 having contested the election for the
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WP No. 105239 of 2021 post of President against the official candidate of the party. Petitioner No.1 had more than adequate time to even after announcing his candidature to withdraw the same as soon as he become aware of the official candidate of the party. There is nothing on record to indicate the steps taken by petitioner No.1 subsequent to petitioner No.1 being made aware of the official candidate and as such I am unable to believe the submission made by the petitioners that petitioner No.1 was not aware of the whip having been issued and or there being an official candidate of the party.
32. The contention that the elections having taken place on 02.11.2020 the complaint having been filed on 03.11.2020 is premature, inasmuch as in terms of Section 3(1)(b) of the Act there is 15 days period provided for condoning the action by such person and there is an embargo in terms of Section 4(1)(b) that a case cannot be filed within a period of 15
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WP No. 105239 of 2021 days. So a case can be filed after 15 days for violation of Section 3(1)(b).
33. Though the complaint was filed on 03.11.2020, action on the same was taken on 19.11.2020 by the Deputy Commissioner issuing a notice to the petitioners. Thus, though the complaint might have been premature, but the action on the case was taken only after the period of 15 days. Be that as it may, in the peculiar facts of this case, it is clearly seen that there is no condonation of the action of the petitioners by the party. The President of the party has acted immediately. The period of 15 days provided under Section 3(1)(b) of Act is more in the nature of cooling off period where any action taken by the member of the party contrary to the instructions of the party or authorized representative could be condoned by the party or authorized representative.
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34. In the present case, the party has decided not to condone and has initiated action. It is not that subsequently, the party has condoned the activities of the petitioners. The activities of the petitioners not having been condoned, the complaint though premature, but notice having been issued after a period of 15 days, I am of the considered opinion that the same would not be in detrimental effect insofar as the proceedings are concerned. The Period of time is fixed for the deputy commissioner to take action and the same has not been fixed for the filing of a complaint, even if a complaint is filed prematurely, the deputy commissioner is required to wait for the statutory period of 15 days, if the act complained of is condoned during that period the complaint would be liable to be dismissed, if it is not condoned than the complaint would proceed by the deputy commissioner issuing necessary notice/s.
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35. Sri.Jayakumar S Patil, learned Senior counsel has also submitted that apart from the complaint of 03.11.2020 there is another complaint filed on 29.07.2021, as regards which notice was issued subsequently. Therefore, the said complaints are within a period of 15 days such notice having been issued after 15 days of the complaint. In my considered opinion the same would go against the contention and/or the requirement, inasmuch as the second set of complaint was filed one year after the act of the petitioners, whereas notice had already been issued on 19.11.2020. If that be so, no action could have been taken on the first complaint. The same would amount to contradiction. Be that as it may, since a conclusion has been made that the first complaint and notice issued does not suffer from any legal infirmity, consideration of the second complaint is rendered academic.
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36. As regards the contention of the petitioners that the complaint having addressed to the Chief Officer instead of the Deputy Commissioner and the Chief Officer has forwarded the complaint to the Project Director who has in turn forwarded the same to the Deputy Commissioner for action and this methodology is contended to be contrary to the applicable law is concerned, I am of the considered opinion that the procedure which has been prescribed in terms of Section 4(2) of the Act, a complaint received under Sub-section (1) by the Chief Officer is required to be forwarded within 24 hours to the Deputy Commissioner in the case of a Town Municipal Council. In the absence of specific Rules giving a literal interpretation to the said provision were required for is that the complaint received by the Chief Officer is to reach the Deputy Commissioner.
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37. The mere fact that it has reached through the Project Director would not have any adverse impact, inasmuch as neither the Chief Officer nor the Project Director have taken any action on the said complaint.
The Chief Officer has acted as a post office/messenger, having received the complaint and has forwarded to the Project Director who also acted as a post office and forwarded it to the Deputy Commissioner. It is only the Deputy Commissioner who initiated action on 19.11.2020 by issuance of a show-cause notice hence this anomaly which is pointed out by Sri.Shivaraj P Mudhol would not enure to the benefit of the petitioners.
38. Sri.Shivaraj P Mudhol has also tried to make out an aspect of bias on the part of respondent No.2-Deputy Commissioner, more particularly by referring to the order sheet dated 25.08.2021 as regards which the petitioners had obtained a certified copy which showed that the matter had only been adjourned to
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WP No. 105239 of 2021 07.09.2021, but the copy which has been produced by the authorities contain the recordal of the order sheet on 07.09.2021 and thereafter adjourned to 21.09.2021. He submits that the subsequent entries made in the caption of 25.08.2021 has fraudulently inserted or manipulated of the order sheet by the Deputy Commissioner at the behest of his political bosses and therefore he has submitted that such actions would establish bias on the part of the Deputy Commissioner which would nullify the order under challenge.
39. I have carefully gone through the order sheet dated 25.08.2021. The said order sheet only first reflects that the matter has been adjourned to 07.09.2021 and on the left-hand side the signatures of the petitioners and the other persons present are found, thereafter an entry has been made that the respondent therein, petitioners herein had appeared
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WP No. 105239 of 2021 and filed a memo along with the documents and the matter was adjourned to 21.09.2021.
40. What has only happened is that the caseworker has not made a note of the date of 07.09.2021 on the left-hand side of the order sheet probably because on the said location the signatures of the petitioners were affixed and there was no space. The concerned caseworker or the Deputy Commissioner could have left that space and made the entry of 07.09.2021 after the signature instead of trying to save a small amount of paper which has result in elaborate arguments being addressed in this regard.
41. A perusal of the documents and the original file indicates that indeed on 07.09.2021 the petitioner had entered appearance, filed a memo along with documents which were served on the other side in the said proceedings and thereafter the matter adjourned to 21.09.2021. Thus, the entry claimed by the Sri.Shivaraj P Mudhol to be a manipulation of
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WP No. 105239 of 2021 record of the events cannot be accepted since on 07.09.2021 and on 21.09.2021 the petitioners have participated in the proceedings. Therefore, the contention that there is any manipulation or fabrication is completely unsustainable.
42. In view of the above, I am of the considered opinion that the complaint filed on 03.11.2020 cannot be said to be premature because the notice was only issued on 19.11.2020.
43. The petitioners have not been able to establish any bias on the part of respondent No.2-Deputy Commissioner. The petitioner No.1 having contested against official candidate there is a violation of Section 3(1)(b) of the Act resulting in action under Section 4 of the Act and the order passed by the respondent No.2-Deputy Commissioner having taken into consideration all these aspects being proper and correct and suffering from no legal infirmity and
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WP No. 105239 of 2021 there is no requirement for this Court to intercede in the matter.
44. The petition stands dismissed.
45. The Apex Court in Kihoto Hollohan's case has succinctly explained the concept of defection and the impact thereof on the democracy of the India. It is therefore required that suitable rules are required to be framed for the implementation of the Act at the earliest. The Act having first published first published in the Karnataka Gazette on 5th May, 1987, amended in the year 1995, 2010 and 2013, it is rather shocking that no rules have been framed in respect of the said Act.
46. Smt.Vidyavathi K. learned Additional Advocate General on enquiry submitted that an endeavor would be made to formulate rules expeditiously without committing on the time.
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47. These being the important matters, it is required of the State to bestow its attention for formulation of the rules. This Court hopes and believes that the State shall formulate the rules within a period of 6 months from the date of this order.
48. In the event of the same not being capable of being formulated by the State, the State can approach this Court for suitable extension.
Sd/-
JUDGE SH/ GAB