Karnataka High Court
Indian National Congress Party vs Deputy Commissioner, on 1 March, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 01st DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.66806 OF 2011(LB-RES)
BETWEEN
1. Indian National Congress Party
Hotel Samrat Sirsi
Rep. by its President (Ex.)
District Congress Committee
Shri Shantaram V.Hegde,
Age: Major, R/o.Sirsi.
2. Sandeep,
S/o.Krishna Talekar,
Age: 39 years,
Councillor of CMC Karwar
From Ward No.28,
R/o.Kathinkon, Karwar. ... Petitioners
(By Sri K.L.Patil, Advocate)
And:
1. Deputy Commissioner
Uttara Kannada District,
Karwar.
2. Ganapatil,
S/o.Dumma Ulvekar
Age: Major,
2
Councillor of CMC Karwar,
From Ward No.3,
R/o.Near Kodibeer Temple,
Karwar.
3. Smt.Nayana,
W/o.Ashok Mhalsekar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.29
R/o.Mhalsa Road
Binag, Karwar.
4. Smt.Anandi,
W/o.Umesh Shirodkar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.2
R/o.Baitkol, Karwar.
5. Ranju,
S/o.Balkrishna Maselkar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.9
R/o.Tariwada
Kodibag, Karwar.
6. Girish,
S/o. Sadashiv Rao,
Age: Major,
Councillor of CMC Karwar,
From Ward No.13
R/o.KHB Colony,
Hubbuwada, Karwar.
7. Digambar,
S/o.Babu Gunagi,
Age: Major,
Councillor of CMC Karwar,
3
From Ward No.19
R/o.Gunagiwada Hubbuwada,
Karwar.
8. Smt.Sneha,
W/o.Subhodh Baadkar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.20
R/o.Devaliwada, Baad,
Nandangadda, Karwar.
9. Smt.Mala,
W/o.Pradeep Hulaswar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.21
R/o.Dr.Ambedkar Colony, Baad
Nandangadda, Karwar.
10. Nagesh
S/o.Vishnu Padalkar,
Age: Major,
Councillor of CMC Karwar,
From Ward No.26
R/o.Nandangadda,
Karwar.
11. Smt.Preeti,
W/o.Madhukar Joshi,
Age: Major,
Councillor of CMC Karwar,
From Ward No.27
R/o.Sannamasjid,
Nandangadda, Karwar.
12. Smt.Divya,
W/o.Devidas Naik,
Age: Major,
Councillor of CMC Karwar,
4
From Ward No.8,
R/o.Sarvodaynagar,
Kodibag, Karwar.
13. Raja,
S/o.Babu Gowda,
Age: Major,
Councillor of CMC Karwar
From Ward No.31,
R/o.Wakkalkeri, Binaga,
Karwar. ... Respondents
(By Smt. K.Vidyavathi, AGA for R1:
Sri V.G.Bhat, Advocate for R2 to R13)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the order dated
20.09.2011 in Complaint No.PURASABHE/1/VI.VA/2011-12
passed by 1st respondent at Annexure S to the writ petition,
etc.
This writ petition, coming on for preliminary hearing in
B Group, this day, the Court made the following:
ORDER
The petitioners have sought the quashing of the order, dated 20.09.2011 (Annexure-S) passed by the first respondent Deputy Commissioner, dismissing the complaint filed by the petitioners under the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 ('the Prohibition of Defection Act' for short) against the respondent Nos. 2 to 13. 5
2. The facts of the case in brief are that in the election held on 28.09.2007 to the City Municipal Council, Karwar, the petitioner No.2 and the respondent Nos. 2 to 13 were elected on the ticket of the Indian National Congress. The respondent Nos.2 to 13 vide their joint letter, dated 18.10.2010 (Annexure-F) informed the Deputy Commissioner that they have joined the Bharatiya Janata Party and that as they constitute 2/3rds majority (12 out of 17 members), the Prohibition of Defection Act has no application for them. They also sought the recognition that they be treated as a separate group.
3. In the election to the offices of the President and the Vice-President of the said local body held on 21.08.2010, the petitioner No.2 and Smt.Rameeja Babu Sheikh were the candidates on behalf of the Congress Party. The first petitioner issued the whip to all the 17 councillors, who were elected on the Congress Party ticket to vote for the said candidates. The whip was communicated by the modes of hand-service, registered post, certificate of posting, besides being published in the newspapers. The respondent Nos.2 to 6 13 did not vote for the petitioner No.2 and Smt.Rameeja Babu Sheikh. On the other hand, they voted and elected the respondent Nos.2 and 3 as the President and Vice President respectively. This defiance of whip drove the petitioners to file a complaint with the first respondent seeking the disqualification of the respondent Nos.2 to 13.
4. The respondent Nos.2 to 13 filed the objections. On behalf of the complainants, the first petitioner gave the evidence. The respondent No.2 gave the evidence on behalf of himself and the respondent Nos.3 to 13.
5. The first respondent Deputy Commissioner formulated the following points for consideration:
(i) Whether the complaint filed under the Prohibition of Defection Act is in order?
(ii) Whether the respondent Nos.2 to 13 are separated from the Indian National Congress?
(iii) Whether the issuance of the whip is in order?
6. Answering the contentious issues against the petitioners, the first respondent dismissed the complaint by his order, dated 20.09.2011. It is this order, which is being 7 assailed before this Court by Sri K.L.Patil, the learned counsel for the petitioners.
7. Sri K.L.Patil submits that as the respondent Nos. 2 to 13 have voluntarily given up the membership of the Party, on whose ticket they are elected, they are liable to be disqualified under Section 3(1)(a) of the said Act. The provisions contained therein are extracted hereinbelow:
"3. Disqualification on the ground of defection - (1) Subject to the provisions of Section 3-A, 3-B and 4, 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."
8. In this regard, he sought to draw support from the Apex Court's judgment in the case of RAVI S.NAIK vs. UNION OF INDIA reported in AIR 1994 SC 1558, wherein it is held as under:
" 11..................... A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of formal resignation 8 from membership an inference can be drawn from the conduct of a member that, he has voluntarily given up his membership of the political party to which he belongs."
9. He has also relied on the Hon'ble Supreme Court's judgment in the case of G.VISHWANATH vs. SPEAKER, T.N. LEGISLATIVE ASSEMBLY reported in AIR 1996 SC 1060. The relevant portions are extracted hereinbelow:
"11. .....................If a person belonging to a political party that had set him up as a candidate, gets elected to the house and thereafter joins another political party for whatever reasons, either because of his exclusion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification."
10. He relies on the Apex Court's judgment in the case of DR.MAHACHANDRA PRASAD SINGH vs. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL reported in (2004) 8 SCC 747 for advancing the submission that the respondent No.2 contested the Assembly election as an independent candidate against an official candidate of the Indian National Congress and that the respondent Nos.2 to 13 have supported the 9 respondent No.2. This amounts to voluntarily giving up the membership of the Indian National Congress Party.
11. He has also relied on the Apex Court's judgment in the case of KIHOTO HOLLHON vs. ZACHILHU AND OTHERS reported in AIR 1993 SC 412 to advance the submission that political propriety and morality demand that if an elected representative changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate.
12. The learned counsel submits that merely because 12 out of 17 elected councillors have left the party, it does not mean that there is a split in the party. If the party splits at the National or State level, only then the splinter-group having 1/3 strength of the total members are immune from the disqualification consequences. But when the Indian National Congress has not split at all, some councillors cannot leave the Party and contend that the Party has split. It is his emphatic submission that the split referred to in law 10 is not the split at the panchayat or municipal level. The Deputy Commissioner has not delivered a categorical finding as to when the split took place. The subtle distinction between defection and split cannot be blurred. In support of his submissions, he relies on the Apex Court's judgment in the case of MAYAVATI vs. MARKANDEYA CHAND AND OTHERS reported in AIR 1998 SC 3340.
13. He also refers to this Court's decision in the case of BAIRAPPA AND OTHERS vs. DEPUTY COMMISSIONER, MANDYA reported in ILR 2010 Kar.397, wherein it is held that the following conditions are to be satisfied for seeking the exemption from disqualification:
(i) There must be a split in the political party.
(ii) Such a split in the political party must reflect in the local body splitting the elected representatives from such political party.
(iii) The group among the elected representatives must represent a faction which has arisen as a result of split in his political party.11
(iv) Such group shall consist of not less than one third of the members of the elected representatives of such political party.
14. The learned counsel further submits that the Division Bench has upheld the view taken by the learned Single Judge in Bairappa's case (supra). The Division Bench in its decision reported in 2012 (2) Kar.L.J. 34 has held that if the councillors of a City Municipality voluntarily give up their membership of the political party to which they belong, it amounts to defection. They cannot claim immunity from being disqualified on the ground that their group has the strength of more than 1/3rd of the councillors of a Party. The split for the purpose of applying such immunity from disqualification must have occurred in the political party to which the defecting councillors belong and not amongst the councillors themselves.
15. The learned counsel takes serious exception to the Deputy Commissioner holding that the whip itself is not valid. Further he submits that the Deputy Commissioner has erred 12 in holding that no documentary evidence is placed on the record to show that the whip is ever served. He submits that enough material is placed on the record of the Deputy Commissioner to come to the conclusion that the whip was validly issued and communicated.
16. The learned counsel submits that the Deputy Commissioner has not applied his mind. The impugned order suffers from the non-application of mind.
17. Sri V.G.Bhat, the learned counsel for the respondent Nos.2 to 13 submits that the complaint filed by the petitioners is defective. The whip is not validly issued. The respondent Nos.2 to 13 have not received the whip.
18. He relies on this Court's decision in the case of C.S.KALE GOWDA v. CHIEF SECRETARY, HASSAN DISTRICT ZILLA PARISHAD reported in Kant.L.J-1990-2-
221. He read out the following portion of the said decision.
"First and foremost, we are clearly of view that disqualification if proved will entail serious consequences. In that person against whom disqualification is proved cannot be any longer corporator 13 ('Corporator' used in generic sense). (ii) It may affect his political career seriously. (iii) proof of such a disqualification is considered to be quasi criminal in nature. Where, therefore, law requires proof of such an allegation, it is imperative, having regard to Section 101 of Evidence Act, that person who alleges disqualification must prove same. To put it in other words, minimum requirement of proof must be insisted upon. To this extent, we are of view that Sri A.K. Subbaiah is right in his submission. But in this case what Chief Secretary did was, he merely rested his conclusion on non denial. We are unable to accept that line of reasoning. Where law insists a matter to be proved by positive evidence, even without minimum evidence, from fact of non-denial a presumption cannot arise. This is reason why we said proceedings partake nature of quasi criminal in character. If that is so, looked at from this point of view, we find no evidence whatever was let in by second respondent, who merely based his complaint on a press report. It is practice of this Court and which is adopted in all judicial proceedings that press reports cannot form evidence nor again can they be substitute for evidence. Chief Secretary having held that press report should not be acted upon, to buttress his conclusion that the appellants are disqualified, would refer to fact that allegations were made against all eleven members, six have chosen to deny allegation and these five have not chosen to do so. That is not proper way of looking at matter. He ought to 14 have insisted on proof from second respondent. Therefore, procedure adopted is wholly wrong."
19. He has also relied on the Division Bench's judgment of this Court in the case of B.C.PARTHASARATHY AND OTHERS v. DEPUTY COMMISSIONER, MYSORE DISTRICT AND OTHERS reported in ILR 2012 KAR 1, wherein it is held that unless the validity of the whip is proved, the question of defiance of the whip would not arise. The relevant paragraph of the said judgment is extracted hereinbelow:
"16. The issue considered by the Division Bench in the NIJNAGOUDA's case is similar to the case on hand inasmuch as no such power, authority or authorisation has been pointed out from the Constitution, the Rules or otherwise. In fact, the Learned Senior Counsel for the respondents relied on the Constitution of the JD(S) party to contend that there is no such power or authorisation. Learned Counsel for the appellants on the other hand sought to contend that Article 22 of the JD(S) party Constitution has been amended and in that regard, sought to rely on the resolution dated 16.06.2008. Firstly, as rightly contended by the Learned Senior Counsel for the respondent, the said document was not a part of the records, neither is there any authentication nor has it been produced in the manner known to law. Therefore, it would not be possible for us to rely on the 15 same. That apart, though the resolution is claimed to be passed on 16.06.2008, it was not relied on in the case of NIJNAGOUDA despite the same being decided subsequently on 19.12.2008. Even otherwise, it is difficult to understand as to how a properly amended Constitution if available could not be relied on at the appropriate stage when the very issue had arisen for consideration in the year 2010 when it is contended that the amendment was brought about in the year 2008. Further, the so called amended portion of the Constitution, also does not disclose authorisation from the political party to the State President. Therefore, keeping these aspects in view, we have no reason to take a different view from the one which has been taken by the Division Bench in the case of NIJNAGOWDA since the position relating to the validity of the whip in respect of the very same political party remains unaltered. Further the facts involved in the instant case is similar to that case. The Learned Single Judge was therefore justified in relying on the same."
20. Sri Bhat submits that the complaint under Prohibition of Defection Act has quasi-criminal bearing. The order of disqualification visits the concerned person with serious and some times even stigmatic consequences. Therefore, the filing of the joint complaint is not permissible. In the instant case, the complaint is jointly filed by the 16 political party and a councillor. Therefore, the Deputy Commissioner has rightly dismissed the complaint of the political party and entertained the complaint only of the councillor.
21. Further, he submits that as the political party alone has adduced the evidence, the Deputy Commissioner has come to the right conclusion that the councillor has failed to prove his case and dismissed the complaint.
22. Smt.K.Vidyavathi, the learned Additional Government Advocate appearing for the respondent No.1 refers to this Court's decision in the case of SMT.RAJAMMA @ SAVITRAMMA AND OTHERS v. THE DEPUTY COMMISSIONER, BANGALORE RURAL DISTRICT AND OTHERS reported in ILR 2010 KAR 4194, wherein it is held that if the Party President issues the authorisation without reference to the party resolution, the issuance of the whip on the basis of such an authorisation is not supportable.
23. My perusal of the impugned order shows that the Deputy Commissioner has repeatedly and at great length 17 referred to the developments in the election to the State Legislative Assembly from Ankola. But he has not answered the core issues raised in the complaint. He states that no documents are produced as to the date on which the respondent Nos.2 to 13 have defected from the Congress Party to the Bharatiya Janata Party. The issue is not when they have joined the Bharathiya Janatha Party. On the other hand, the issue is whether they have left the Congress Party. The words 'if he has voluntarily given up his membership of such political party' are not synonymous with resignation; they have wider connotation. Under Section 3(1)(a) of the said Act, a councillor invites the disqualification, if he voluntarily givens up the membership of the political party. No issue whatsoever is framed as to whether the respondent Nos. 2 to 13 have voluntarily given up their membership of the Congress Party on whose ticket they are elected to the Municipal Council.
24. It is not sufficient if more than 1/3rd of the councillors form a separate group without there being a split in the original political party. This aspect of the matter 18 appears to have been glossed over by the Deputy Commissioner. Defection cannot be equated with split.
25. Similarly, the Deputy Commissioner observes that the complainants have not produced any documents to show as to who were the candidates of the Congress Party for the posts of President and Vice President of the City Municipal Council, Ankola. This view is not sustainable, because the whips themselves contain the names of the candidates of the Congress Party for the said posts with a direction to vote for them. The insistence that the declaration of the names of the candidates and the issuance of the whip should be in two separate documents is not traceable to any provision of law. There is no legal impediment in giving one composite direction to vote for the chosen candidates of a party.
26. The Deputy Commissioner has observed that no documents whatsoever are produced to show that the whips are served. The first petitioner has filed the affidavit by way of examination-in-chief. In the affidavit, he has stated that the whip is sent by the modes of hand service, RPAD and UCP. 19 He has stated that the respondent Nos.11 and 13 herein (opposite party Nos.10 and 12) have received the whip sent by hand under UCP, RPAD and speed post. He has also stated that the whip issued to the respondent No.10 herein (opposite party No.9 in the proceedings before the Deputy Commissioner) was served with a whip under RPAD and speed post. The whip is issued to opposite parties 1 to 12 (the respondent Nos.2 to 13 herein). He has further stated that the whip issued to the respondent Nos.2 to 13 (opposite party Nos.1 to 12) are returned with the postal endorsement 'not claimed and addressee refused'. Therefore, the first petitioner has demanded that the service of whip on the said respondents be deemed to have been completed. The 9 acknowledgments collectively marked as Ex.A8 have not been given any weightage by the Deputy Commissioner. Further, the first petitioner has also produced the 'Karavali Munjavu' and 'Kadala Vani' newspapers containing the publication of whip. They are marked as Ex.A9. These have not been considered in their proper perspective.
27. The Deputy Commissioner's order no doubt refers to the letter, dated 18.10.2010 (Annexure-F to the writ petition 20 and Ex.A5 in the complaint proceedings) but there is no proper consideration of the same. It is by the said letter that the respondent Nos.2 to 13 have informed the Deputy Commissioner that they have joined the Bharatiya Janatha Party and that they constitute 2/3rd majority. The Deputy Commissioner ought to have considered whether this letter amounts to the respondent Nos. 2 to 13 giving up the membership of the Congress Party voluntarily. On the other hand, he holds that no documents are produced as to on what date they have joined the Bharatiya Jayana Party leaving the Congress Party. The Deputy Commissioner has skirted the issue of whether the respondent Nos.2 to 13 have voluntarily given up the membership of the Congress Party.
28. At some places of the impugned order, there is discussion of the evidence placed on the record of the first petitioner. But at some other places, particularly in the context of the service or non-service of the whip, the Deputy Commissioner holds that no documents whatsoever are produced. The impugned order thus suffers not only from the 21 lack of clarity but also from the exclusion of the relevant materials placed on the record.
29. Admittedly, the complaint is jointly filed by a political party and a councillor, the petitioner Nos. 1 and 2 respectively. The Deputy Commissioner was not inclined to entertain the complaint of the first petitioner on the ground that Shantarama V Hegde is not competent to file the complaint. He dismisses the complaint virtually implying that the second petitioner has not adduced the evidence and that he has not placed any material on the record, though he proceeds to look into the evidence placed by the first petitioner on his record. Such an approach does not withstand the scrutiny of law. It was open to the Deputy Commissioner to formulate a preliminary point as to whether the complaint filed by the first petitioner is defective or is in order. If he were to answer this preliminary question against the petitioner No.1, then the second petitioner would have entered the witness box. In the instant case, the Deputy Commissioner has taken up the joint complaint for enquiry, wherein the first petitioner adduces the evidence on behalf of 22 both the petitioners. As the joint enquiry was held, the petitioner No.2 may not have felt the need to enter the witness box and to repeat the statements of the first petitioner. If the second petitioner were to be made known of the position that the complaint is not being entertained in respect of the first petitioner, the second petitioner would have entered the witness box. The contents and scope of the substantive provisions contained in the Prohibition of the Defection Act cannot be curtailed by raising the innumerable technicalities.
30. For all the aforesaid reasons, I find that the impugned order is unsustainable and unsupportable. I therefore quash it. The Deputy Commissioner is directed to hold the fresh enquiry into the petitioners' complaint in accordance with law and pass the appropriate orders. The parties are directed to co-operate with the Deputy Commissioner in the speedy disposal of the remanded matter.
31. The Deputy Commissioner shall formulate the preliminary issue or point as follows:
23
Whether the first petitioner is competent to file the complaint?
32. On answering the preliminary question, the following issues/points shall be taken up for consideration:
(i) Whether the respondent Nos.2 to 13 have voluntarily given up their membership of the Congress Party?
(ii) Whether the first petitioner has validly issued the whip?
(iii) Whether the whip was served on the respondent Nos.2 to 13?
33. It is made clear that the above points constitute the core issues for the Deputy Commissioner's enquiry; but the list of points is not exhaustive. It is open to the Deputy Commissioner to frame any other issues. The liberty is reserved to the parties to lead fresh/additional evidence. The petitioners and the respondent Nos. 2 to 13 shall appear before the first respondent Deputy Commissioner on 18.03.2013 without waiting for any notice from him. The 24 Deputy Commissioner shall dispose of the remanded matter within one month from 18.03.2013.
34. This petition is accordingly allowed. No order as to costs.
Sd/-
JUDGE Cm/-