Karnataka High Court
Smt. Shobha vs State Election Commission, By Its ... on 17 June, 2003
Equivalent citations: ILR2003KAR3104, 2004(2)KARLJ375, 2003 AIR KANT HCR 1943, 2003 A I H C 3459, 2003 AIR - KANT. H. C. R. 1943, 2003 AIHC 3459 (2004) 1 KANT LJ 375, (2004) 1 KANT LJ 375
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER Dattu, J.
1. A member of Mysore Zilla Panchayat calls in question the correctness or otherwise of an order passed by the Commissioner, State Election Commission dated 30.11.2002, on a complaint filed by some of the members of Zilla Panchayat in exercise of his powers under Section 3(1)(b) of the Karnataka Local Authorities (Prohibition of Defection) Act 1987, (hereinafter for the sake of brevity referred to as 'Prohibition Act')
2. Petitioner, 2nd and 4th respondent herein are members of Mysore Zilla Panchayat. They belong to Congress Party. The third respondent herein is the President of Mysore Rural District Congress Committee, Mysore District, Mysore. The Zilla Panchayat has 41 members and out of them 20 belong to JD(S), 18 from Congress, 2 is from BJP and one is an independent member.
3. In the present case, we are concerned with the elections held on 11.3.2002 for the office of Adhyaksha and Upadhyaksha of Mysore Zilla Panchayat. It is the case of respondent Nos 2 to 4 that whip had been issued by the President of Rural District Congress Committee before the commencement of the election process, directing the members of the congress party to vote for Smt. Lekha Venkatesh and Sri D.M. Theerthappa, a B.J.P candidate in the election to the office of Adhyaksha and Upadhyksha respectively and contrary to the whip, petitioner voted in favour of J.D(S) candidate for election to the office of Adhyaksha and voted for herself, for the office of Upadhyaksha and it is their further case that in view of petitioner's intentional violation of the party whip, the candidates fielded by the Congress party have lost in the election process and the congress party has not condoned the action of the petitioner in violating the party whip within 15 days from the date of voting. They have filed identical complaint before the Chief Executive Officer, Mysore Zilla Panchayat, Mysore, interalia requesting him to disqualify petitioner from being a member of Zilla Panchayat for vioting the party whip as provided under the Act.
4. The Chief Executive Officer has placed the complaints before the first respondent herein to consider the request made in the complaint filed by the members of Zilla Panchayat since he is the competent autority under the Act to decide the lis in the complaint. After notice to both the parties and after affording them a reasonable opportunity of hearing, the first respondent has accepted the request made in the complaint and has passed the impugned order holding that the Congress Party had issued a whip, the whip was legal, it was served on the petitioner and as the petitioner has not obeyed the whip, she is liable for disqualification and therefore has disqualified the petitioner from being member of the Mysore Zilla Panchayat. It is the correctness or otherwise of the order so made is the subject matter of this Writ Petition.
5. The specific case of the complainants in their complaint in that, a meeting of the members of the Zilla Panchayat was held in the office of the Congress Party at Mysore at 3.00 p.m. on 7.3.2002 and in the meeting, a decision was taken to leave the decision to their superiors to name the candidate/candidates to contest in the elections for the office of Adhyaksha and Upadhyaksha of Zilla Panchayat to be held on 11.3.2002 and that resolution and the attendance register was not signed by the petitioner though she was present and participated in the discussions held on that date. In the complaint, they have further stated as under.
"It is submitted that Mysore Rural District Congress Committee President Sri H. Subbaiah handed over the whip in writing to the respondent on 11.3.2002 at 8.30 a.m. in front of Mysore Zilla Panchayat Building before the commencement of Election. However, the respondent refused to accept the whip and thereupon the President, Mysore Rural District Congress Committee drew up a mahazar of the said refusal of the respondent to accept the whip in the presence of Sri Chikkanna, Mysore Zilla Panchayat Member and Sri Honnanika, Mysore Zilla Panchayat Member, both are Congress Party members"
6. The sum and substance of the complaint is that the authorised Officer of the party had issued a whip before the commencement of the elections to the office of Adhyaksha and Upadhyaksha of Mysore Zilla Panchayat and the petitioner refused to receive the same when it was handed over to her by the President of Rural District Congress Committee on 11.3.2002 at 8.30 a.m. in front of Zilla Panchayat office and voted in the elections contrary to the whip issued and thereby has incurred disqualification to continue as a member of Zilla Panchayat.
7. In her reply before the first respondent, apart from others she has specifically denied the allegation of issue of whip by the authorized person and refusal by her to receive the same when it was tried to be served on her by President of DCCI on the day of elections at 8.30 a.m. in front of Zilla Panchayat Office.
8. Parties to the lis have also led in their evidence and have marked several documents in support of their case and claim. 9. PW1-Sri Shivanna, PW4-Sri Chikkanna and PW5-Sri Honnanaika in their evidence have stated about the meeting and the decision reached by the members of the Zilla Panchayat said to have been held on 7.3.2002 at 3 p.m. in the party office and further the decision of the party high command to permit Smt Lekha Venkatesh and Sri D.M. Theerthappa, a B.J.P. candidate as their candidates to contest in the election for the office of Adhyaksha and Upadhyaksha in the election to be held on 11.3.2002. They further depose with regard to issuance of whips to 17 members of the party in the party office at 8 a.m. on 11.3.2002 and since petitioner was not present, the President of DCCI tried to serve the whip on petitioner in front of Zilla Panchayat office, at 8.30. a.m. and according to them, she refused to receive and acknowledge the whip and in the same breath they say, petitioner after reading the whip, tore it and threw it away and a mahazer is drawn to that effect by the President of DCCI.
PW2-Smt Lekha Venkatesh, apart from what other witnesses have depose, states that, she saw petitioner reading the whip and further states that she learnt from President of DCCI about the petitioner refusing to receive the whip, tearing and throwing it away in presence of Sri Chikkanna and Sri Honnanaika, the members of Zilla Panchayat.
PW3-H Subbaiah is the DCCI President in his evidence, he states that he had convened a preliminary meeting of the MLA's of the District, Ministers and Senior Party Members of the party on 7.3.2002 at 3 p.m. to take a decision in regard to fielding of their candidate in the elections to the office of Adhyaksha and Upadhyaksha of the Mysore Zilla Panchayath on 11.3.2002. He further states that in the said meeting, a decision was taken to leave it to the party high command, i.e. the District Minister to choose candidates to participate in the election process for the post of Adhyaksha and Upadhyaksha of Zilla Panchayat. According to him, this resolution was recorded and all the members have signed the resolution except the petitioner though she had participated in the deliberations held in the party office on 7.3.2002. He further states that in the meeting that was convened on 11.3.2002 in the Zilla Panchayat Office, except petitioner all the other members attended the meeting and received the whip, wherein the members of the party were directed to vote for Smt Lekha Venkatesh, who was chosen as the candidate to contest in the election to the office of Adhyaksha of Mysore Zilla Panchayat. He has also deposed that whips were prepared for 18 members of the Zilla Panchayat and were served on 17 members directing them to vote in favour of officially decided candidate, namely, Smt Lekha Venkatesh in the elections to the office of Adhyaksha of Zilla Panchayat and since petitioner did not come to the office of Zilla Panchayat to receive the whip, he saw the petitioner coming towards the office at 8.30 a.m. and handed over the whip to her. However on receiving, she read and tore the whip. He has further deposed that he had served the whip on 17 members of the Zilla Panchayat who belong to Congress party and the copies are available with him and in the cross-examination, he states, he has handed over copies of the whip to the Secretary of DCCI and they may be available with him. He also states with regard to drawing up of Mahazar in presence of two other members of Zilla Panchayat with regard to the incident of petitioner's conduct after receiving the whip in front of the party office on 11.03.2002.
10. Petitioner has also examined herself as RW1 before the first respondent and also has marked exhibits R-1 to R-6 in her deposition, she denies the alleged incident of service of whip by the party president and her action of tearing the same and throwing it away.
11. The primary issues that requires to be considered and decided are:
I. WHETHER the Congress party had issued any whip as asserted by them in their complaint? if so, II. WHETHER the said whip was served on petitioner?
III. WHETHER the petitioner has voted contrary to the directions issued in the whip?
IV. WHETHER the first respondent was justified in allowing the request made in the complaint?
V. What order?
12. The question to be determined legally is whether the petitioner deserves an order of disqualification under the provisions of Antidefection laws? To answer this precise issue the provisions of the Karnataka Local Authorities (Prohibition on Defection) Act, 1987 (the Act' for short), requires to be noticed first.
The preamble of the Act gives and indication of the purpose and object of the Act. The Act is made to prohibit defection by the councilors 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.
A Member's is defined to mean member of Zilla Panchayath or a Taluk Panchayat elected under the Karnataka Panchyat Raj Act, 1993.
13. Section 3 of the Act provides for disqualification on the ground of defection. The provision under which petitioner is disqualified from being a member of Zilla Panchayat by the impugned order is Section 3(1) (b) of the Act read with Section 4 of the Act. Section 3(1)(b)of the Act reads as under.
"Section 3(1) Subject to the provisions of Section 3A, 3B and 4, a councilor or a member belonging to any political party, shall be disqualified for being such a councilor or member,-
(a) xxx xxx
(b) If he votes or abstains from voting in or intentionally remains absent from any meeting of the Municipal Corporation, Municipal Council, Town Panchayat, Zilla Panchayat or Taluk Panchayat, contrary to any direction issued by the political party to which he belongs or by any person or authority 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"
14. An analysis of the aforesaid section demonstrates that a member belonging to any political party shall be disqualified from being a member, among others, if he votes or abstains from voting contrary to any direction issued by the political party to which he belongs without obtaining the prior permission of such party or a person authorised by it in that behalf and such voting or absence has not been condoned by the political party or person authorized by it in that behalf within fifteen days from the date of voting or abstention or absence. The main ingredients of the Section are,
(i) the member should belong to a political party
(ii) there must be a direction issued by the political party or the person authorised by it in that behalf and obviously this direction cannot be oral direction and it must be in writing for the reason the disobedience of the direction involve serious consequences,
(iii) if the member acts contrary to the directions issued without permission of the political party or the person authorised in that behalf and lastly,
(iv) if that action of the member is not condoned within the time limit, prescribed, a member belonging to the political party shall be disqualified from being such member.
15. A whip is a direction issued is writing by a political party or a person authorised by it in that behalf to vote or abstain from voting according to the line decided by the party on important question.
16. Let me now notice the contentions canvassed by learned Counsel for the parties Sri P.S. Manjunath, learned Counsel for the petitioner would submit, firstly that the Congress party in its meeting held on 07.03.2002 in the party office had not taken any decision to field the fourth respondent as the candidate of the Congress party to contest in the elections held for the office of Adhyaksha of Mysore Zilla Panchayat. Secondly, the Congress party had not issued any whip to its Zilla Panchayat members to vote in particular manner in the elections scheduled to be held on 11.03.2002 for the office of Adhyaksha and upadhyaksha of Zilla Panchayat. Alternatively it was submitted that no written communication was issued either by the party or the person authorised by it, to exercise her franchise in a particular manner in the elections scheduled to be held on 11.03.2002 for the office of Adhyaksha and Upadhyaksha of Zilla Panchayat and therefore it cannot be said petitioner has voted in the elections contrary to the directions issued by the authorised person of the party. Lastly in the facts and circumstances of the case, the first respondent should not have exercised his powers under the provisions of Anti-Defection Law and therefore, the first respondent was not justified in passing the impugned order.
17. Sri Kantha Raj, Sri Chandrashekaraiah and Sri Phanindra, learned Counsels for respondents while justifying the impugned order, would submit, that this Court should be slow in interfering with the orders passed by the election tribunal in exercise of its writ jurisdiction. According to the learned Counsels the findings of the election tribunal can be interfered with by this Court only, if the findings or conclusion reached by the tribunal are wholly perverse or based on inadmissible evidence and not otherwise in aid of this submission, the learned Counsels invite my attention to the observations made by Apex Court in the case of SWARN SINGH AND ANOTHER vs STATE OF PUNJAB AND OTHERS, , UNION OF INDIA vs SARDAN BAHADUR, (1972) 4 SCC 615, STATE FINANCIAL CORPORATION AND ANOTHER vs JAGADAMBA OIL MILLS, . The learned Counsels would further submit the PW1 in her evidence has deposed that a whip was issued by President, DCCI and the petitioner refused to receive the same. According to the learned Counsels, this part of the evidence is not even questioned at the time of cross examination and therefore that part of the evidence of PW1 goes unchallenged and therefore, the same requires to be accepted in support of this contention, the learned Counsels heavily rely upon the observations made by this Court in the case of SMT ANANDALAKSHMI AND ANOTHER vs DEPUTY COMMISSIONER, MYSORE, ILR 2002 KARNATAKA 5199, H.S. DEVARAJ vs STATE ELECTION COMMISSIONER, BANGALORE, .
18. It is true, that, ordinarily Courts will not interfere with the findings of the Election Tribunal in a petition filed under Article 227 of the Constitution of India. However, Courts will interfere, if a finding is based on a misreading of the material evidence or if the finding is perverse, i.e., if it is based on no evidence whatsoever or if the findings is so unreasonable or grossly unjust that no reasonable person could judicially arrive at that conclusion. Therefore, the learned Counsels for respondents may not be justified in contending that under all circumstances this Court will not interfere with the findings of inferior Tribunal.
19. The onus is on the complainants to prove, their allegations made in the complaints filed before State Election Commission under the provisions or Prohibition of Defection Act. The facts which complainant must prove in order to succeed in their claim is the fact of issuing a whip by the President of DCCI and service of the same on its members including the petitioner. Secondly, whether the member has violated or acted contrary to the directions issued in the whip. If these two ultimate facts are not proved with cogent, credible and admissible evidence, the complainants cannot succeed in the lis.
20. The complainants in their written complaints filed before the election commission state that a whip had been prepared by the President of DCCI and the same was served on 17 members out of 18 members of the Congress party and since the petitioner was not present in the office of Zilla Panchayat on the date of elections the same could not be served on her, but when the President tried to serve the whip on the petitioner in front of Zilla Panchayat office at 8.30 AM on 11.3.2002, she refused to receive the same in the complaint there is not whisper with regard to complainant receiving the whip served by the Party President and tearing it after reading the same in presence of two witnesses, which has come on record in the evidence adduced by the complainants obviously. It is an after thought. This part of the evidence cannot be believed for the simple reason, if what they have stated in the evidence is an expression of, if what had transpired, the same would have been narrated in the complaint said to have been drafted by their learned advocates, but an important fact like this is not even stated in the complaint which was prepared at the earliest point of time. Any oral evidence led in before the authority on this aspect of the matter is difficult to believe. Therefore, this part of the evidence cannot be believed and requires to be eschewed. Secondly, it is the statement of all the witness that the party did hold a meeting on 07.03.2002 to decide who should be projected as their candidate for the post of Adhyaksha and Upadhyaksha of Zilla Panchayat in the elections scheduled to be held on 11.03.2002. The proceedings of the meeting is documented in the record book maintained by the party. A perusal of the same would cast some doubt on the authenticity of the preparation/recording of the proceedings. The proceedings which is said to have taken place on 07.03.2002 is recorded after recording of the proceedings dated 28.03.2002. This recording of the resolution casts a doubt about the genuineness of those proceedings. There is every possibility that the proceedings have been recorded by the party on a later date in support of their assertion made in the complaint. Otherwise a responsible organisation like Congress party would not have recorded a resolution in the manner it is done in the present case and thereafter obtained the signature of its members after recording a resolution which pertain to the subject matter of this lis.
21. It is the specific case of the President of DCCI of the Congress party that he had prepared 18 whips to serve on its members to vote in particular manner in the election scheduled to be held on 11.03.2002. It is his further case that he had served the whip on 17 members of the party on the date of election after obtaining their signature and copies of those are available in the office of the party. For the reasons best knows to him alone, he has not produced atleast one carbon/office copy of the whip before the State Election Commission to demonstrate about the preparation of the whip and service of the same on its members. If any whip was actually prepared and served on other members of the party, the same could have been produced by the witness as his primary evidence to demonstrate about the preparation of the whip and service of the same on the other members of the party, who according to the witness were present in the party office on the date of election to receive the directions of the party high command instead of that important evidence, they have tried to rely upon a whip whose existence is shrouded with mystery and preparation and service of the same is denied by the petitioner at the earliest point of time in a situation of this nature, it was expected of the president of DCCI firstly to have produced before the State Election Commission the copies of the whips prepared and served on 17 out of 18 Congress Zilla Parishat Members to support his evidence that whips infact were prepared and a direction was issued to the members to vote for a particular candidate in the elections held for the office of Adhyaksha and Upadhyaksha of Zilla Panchayat. This piece of material and primary evidence is been withheld by the complainants before the Election Commission if the party had really issued the whip to all its members, the person speaking for the party would have produced a copy of the whip before the first respondent authority, firstly to demonstrate that a whip had been prepared before the date of elections and secondly would have spoken to the contents of the whip, wherein a direction was issued to the members of the party to vote in the elections in a particular manner and thirdly the whip had been issued to 17 members of the party, who were present in the party office instead of this, they have tried to rely upon a document which is supposed to be a whip issued by the party, which was not received by the petitioner, but said to have been torn by her after reading the same. Therefore, preparation of the whip and its service on its members before the date of elections cannot be believed.
22. Petitioner had specifically alleged that the mahazer said to have been drawn by the Party President in presence of two members of the Zilla Panchayat evidencing the alleged attempt to serve the whip on the petitioner and refusal of the petitioner to receive the same is concocted document and no reliance can be placed on the said mahazar. It is not the case of the respondents that no independent witnesses were available nor none were willing to associate themselves while drawing the mahazar. The persons, who have signed the mahazar are none other than the members of the Zilla Panchayat and they are Congress Party members. Their loyalty is to their President. They would be definitely supporting the case of their President and further they are also interested in the outcome of the proceedings. Therefore, it is not very safe to rely upon he mahazar said to have been prepared evidencing certain incidents said to have happened near the party office on the date of election. The Apex Court in the case of SANS PAL SINGH vs STATE OF DELHI, has observed.
"It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged"
23. The materials available on record would amply demonstrate that the Congress Party had not taken any decision on 7.3.2002 to field the fourth respondent as the candidate of the party to contest in the elections for the post of Adhyaksha of Zilla Panchayat. Secondly, from the records produced by the respondents, the party high command had not issued any directions to the Party President to nominate any of its members to participate in the election process in the elections for the office of Adhyaksha or Upadhyaksha of Zilla Panchayat. Thirdly, no whip had been issued by the party to its members to vote in the elections of Adhyaksha and Upadhyaksha of Zilla Panchayat elections. If this conclusion of mine is correct, then it could be safely said that the ingredients of provisions of Section 3(1)(b) of the Act are not satisfied and therefore, the respondent authority was not justified in passing the impugned order.
24. In my view, the impugned order of the first respondent authority suffers from material irregularities and is based on perverse appreciation of evidence on record. To cite a few instances, let me peep into his impugned order. The first issue he would raise for his decision and consideration is whether the direction issued by the Congress Party on 11.3.2002 pursuant to the decisions at the party meeting held on 7.3.2002 is valid?. The issue that is framed by him itself is incorrect and improper. It is the case of the contesting respondent before him that the Congress Party had not issued any direction on 11.3.2002 in regard to fielding of any candidate for the elections of Adhyaksha and Upadhyaksha of Zilla Panchayat scheduled to be held on 11.3.2002. In such circumstances, the issue should have been whether the Congress Party had issued any direction on 11.3.2002 and whether such direction was valid?. The first respondent authority proceeds on the assumption that a direction was issued by the Party President on 11.3.2002 when the same was seriously disputed by the contesting private respondent before him. The facts would disclose that in the meeting of Zilla Panchayat members of the Congress Party held on 7.3.2002, no decision was taken by the party in regard to fielding of any official candidate for the elections of Adhyaksha and Upadhyaksha of Zilla Panchayat. The choice, infact, was left to the party superiors to take a decision in that regard. Except the oral evidence of interested persons, there is nothing else on record to show that the party superiors had taken any decision and communicated the same to the President of DCCI. Further there is nothing on record to show that the Party President had decided to field Smt. Lekha Venkatesh to contest in the elections to the post of Adhyaksha of Zilla Panchayat. The Congress Party is a responsible organisation and it would not do certain things, which are not acceptable to the naked eye. If for any reason, the President had taken a decision to field Smt. Lekha Venkatesh as a party candidate, there would be some indication in their records either by way of a resolution or a noting in their records. But nothing is produced in support of their case either in their pleadings or at the time of evidence inspite of all this, the first respondent authority proceeds on the assumption that a direction was issued on11.3.2002, pursuant to a meeting held on 7.3.2002 and the same is valid. This reasoning of the learned State Election Commission is perverse since it is not based on any evidence whatsoever.
25. The order issues that the first respondent authority has raised for his decision and consideration also amply demonstrates that he proceeds on the assumption that the Congress Party had issued a whip and the direction contained in the whip was not followed by the respondent before him.As I have already observed that the issue before him by the opposite party was, that the whip was never issued by the Congress Party and document produced by the complainants during their evidence was a concocted document to support their case. In a situation like this, what was required to be decided by the first respondent authority was whether the Congress Party had issued any whip and if so, whether it was served on the petitioner herein? Instead of doing so, the first respondent authority assumes that a whip had been issued by the party and then proceeds to decide the case. In my opinion, the first respondent authority has misdirected himself while deciding the lis between the parties and this has caused great prejudice to the case of the opposite party. Since the findings reached by the first respondent authority is on wrong assumption of the pleadings of the parties, the same is grossly unjust and perverse. Therefore, the conclusion reached by the first respondent authority cannot be sustained.
26. In the result, the following ORDER I. Writ Petition is allowed. The impugned order of the first respondent authority dated 30.11.2002 is set aside.
II. In the facts and circumstances of the case, parties are directed to bear their own costs.