Karnataka High Court
Smt. Manjavva Shekappa Harijan vs Smt. Chaitra Gurupadappa Shirur on 19 November, 2020
Author: S.R. Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.8364 OF 2020 (LB-RES)
BETWEEN:
1. SMT. MANJAVVA SHEKAPPA HARIJAN
W/O SHEKAPPA HARIJAN
MAJOR BY AGE 50
MEMBER OF DHARWAD JILLA PARISHAD
TABAKADA HONNIHALLI KSHETHRA
DHARWAD
PRESENTLY RESIDING AT
NO.204, VISHWAS RESIDENCY
XXII A MAIN PADMANABHANAGAR
BENGALURU - 560 070.
2. SMT. RATNA DAYANAND PATIL
W/O DAYANAND PATIL
MAJOR BY AGE 43
MEMBER OF DHARWAD JILLA PARISHAD
GARAGA CONSTITUENCY
DHARWAD DISTRICT
PRESENTLY RESIDING AT
# 340, 41ST CROSS, II MAIN
XIII BLOCK, JAYANAGAR
BENGALURU - 560 082.
3. SMT. JYOTHI SHIVANANDA BENTURU
W/O SHIVANAND BENTURU
MAJOR BY AGE 38
MEMBER OF DHARWAD JILLA PAISHAD
GUDAGERI CONSITITUENCY
TALUQA KUNDAGOLA
DHARWADA
PRESENTLY RESIDING AT
NO. 21/5, KONANKUNTE CROSS
VASANTHAPURA ROAD
KANAKAPURA MAIN ROAD
BENGALURU - 560 052.
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4. SRI. ANNAPPA FAKEERPPA DESAI
S/O FAKREEPPA DESAI
MAJOR BY AGE 52 YEARS
MEMBER OF DHARWAD JILLA PARISHAD
GALAGI HULAKOPPA CONSTITUENCY
TALUQA KALGHATGI
DHARWADA
PRESENTLY RESIDING AT
NO. 58, GURUPRIYA VINYAS
APARTMENT, V. CROSS
HANUMAGIIR LAYOUT
CHIKKALASANDRA MAIN ROAD
PADMANABHA NAGAR
BENGALURU - 560 061.
...PETITIONERS
(BY SRI. A.S.PONNANNA,SR.COUNSEL FOR
SRI. MONESH KUMAR, K.B, ADVOCATE)
AND:
1. SMT. CHAITRA GURUPADAPPA SHIRUR
DHARWAD JILLA PANCHAYAT MEMBER
SHIAGUPPI CONSTITUENCY
HUBBALLI
DHARWAD DISTRICT.
2. ERANNA JADI
DISTRICT PRESIDENT
BHARATIYA JANATA PARTY
DHARWAD RURAL DISTRICT
MAVANOOR, HUBBALLI TALUQA
DHARWAD DISTRICT - 580 024.
3. THE KARNATAKA STATE ELELCTION COMMISSION
NO.8 I FLOOR, KARNATAKA STATE
CO.OPERATIVE FEDERATION BUILDING
CUNNINGHAM ROAD
BENGALURU - 560 052.
REREPRESENTED BY
THE ADDITIONAL SECRETARY.
...RESPONDENTS
(BY SRI. SAJJAN POOVAIAH, SR.COUNSEL FOR
SRI. AVINASH M. ANGADI, ADVOCATE FOR R -1 & R-2
SRI. SHIVARAJ.C.BELLAKKI, ADVOCATE FOR R-3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR
RECORDS FROM THE RESPONDENT NO.3 AND B) BE FURTHER
PLEASED TO SET ASIDE THE IMPUGNED ORDER DATED:
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10.06.2020 IN CASE NO. SEC/02/03/04/05/06 ADA /ZP/2019
PASSED BY THE RESPONDENT NO.3 PRODUCED AS
ANNEXURE-J AND BE FURTHER PLEASED TO DISMISS THE
COMPLAINT OF THE RESPONDENT NO. 1 & 2. AND ETC.
THIS W.P. IS BEING HEARD AND RESERVED FOR
FUTHER HEARING ON 21.09.2020, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
This petition takes exception to the impugned order at Annexure-J dated 10.06.2020 passed by respondent No.3 - the Karnataka State Election Commission, whereby the complaints filed under Section 4(2)(i) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short "the Act") against the petitioners was allowed, thereby declaring that the petitioners have committed the act of defection under Section 3(1)(b) of the said Act and thereby disqualifying them under Section 4(2)(i) of the Act on the ground of defection.
2. Briefly stated, the facts giving rise to the present petition are as follows:
A. Petitioners are elected members of the Dharwad Zilla Parishad (for short "the Parishad") of which respondent No.1 is also a member. A no-confidence motion was 4 moved against respondent No.1 by 11 members of the Parishad before the vice-president on 24.01.2019, who forwarded the same to the CEO of the Parishad, who fixed the date of the special meeting for consideration of no confidence motion on 05.02.2019. On 24.01.2019, Sri. B.S. Yediyurappa, Hon'ble Chief Minister and also the State President of the Bharathiya Janatha Party (BJP) is said to have issued an authorisation in favour of Mr. Eranna Jadi, respondent No.2 herein authorising him to take appropriate decision in the matter and issue a whip to all the party members including the petitioners herein. Pursuant thereto, respondent No.2 is said to have issued a whip to the members of the BJP including the petitioners directing them to vote in the proposed meeting to be held on 05.02.2019 and cast their vote against the motion of no-confidence and in favour of respondent No.1.
B. According to the respondents, the said whip is said to have been served upon the petitioners, who dispute the said allegation and contend that the whip was never 5 served upon them. So also, the contention of the respondents that the copies of the whip were sent to the CEO of the Parishad and to the Deputy Commissioner, Dharwad in addition to being sent to the Chief Election Officer, Bengaluru is disputed by the petitioners.
C. On 05.02.2019 in the Special Meeting held to consider the no-confidence motion moved against respondent No.1, the petitioners are said to have violated the aforesaid whip and voted in favour of the no-confidence motion, which constitutes acts of defection under Section 3(1)(b) of the Act.
D. On 22.02.2019, respondent No.1 filed a complaint before the CEO of the Parishad against petitioners. So also, on 25.02.2019, respondent No.2 filed four complaints against the petitioners herein. Pursuant thereto, the CEO of the Parishad forwarded the same to respondent No.3, which initiated the impugned proceedings against the petitioners under the Act. Upon appearing before respondent No.3, petitioners 6 contested the said proceedings by filing their Statement of Objections.
E. Respondent No.3 conducted trial, during which both petitioners as well as respondent Nos.1 and 2 adduced both oral and documentary evidence. By the impugned order at Annexure-J dated 10.06.2020, respondent No.3 allowed the complaints filed by respondent Nos.1 and 2 and disqualified the petitioners under Section 4(2)(i) of the Act, on the ground of defection. Aggrieved by the impugned order, petitioners are before this Court, by way of the present petition.
3. Respondent Nos.1 and 2 have filed their Statement of Objections along with documents and have contested the matter.
4. I have heard Sri. A.S. Ponnanna, learned Senior counsel for the petitioners as well as Sri. Sajjan Poovayya, learned Senior counsel for respondent Nos.1 and 2 and perused the material on record.
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5. In addition to reiterating the various contentions urged on behalf of the petitioners and referring to the documents produced by the petitioners, learned Senior counsel for the petitioners made the following submissions:
A. According to Section 3(1)(b) of the Act, the petitioners, who are members of the political party (BJP) can be held to be disqualified only if they vote contrary to any directions issued by the BJP or by any person or authority authorised by it in this behalf without obtaining prior permission of the BJP, such person or authority. In this context, it is submitted that though BJP is a political party within the meaning of Section 2(vi) of the Act, Sri. B.S. Yediyurappa was not the political party i.e., BJP, which was authorised and empowered to issue any directions to respondent No.2 to issue the whip against the petitioners. It is therefore submitted that so long as Sri. B.S. Yediyurappa, despite being the party president of BJP, was not empowered or authorised by the BJP to issue any direction to respondent No.2 to issue a whip to the petitioners, the alleged authorisation letter dated 24.01.2019, said to have been issued by him to 8 respondent No.2 as neither valid nor sufficient for respondent No.2 to issue a whip to petitioners on the ground that they are disqualified under Section 3(1)(b) of the Act.
B. Though the petitioners have taken up a specific contention that Sri. B.S. Yediyurappa could not be construed or treated as the political party BJP and was not competent or entitled to issue any direction to respondent No.2 to issue a whip to the petitioners for the purposes of Section 3(b) of the Act, the respondent Nos.1 and 2 had not placed any material establishing as to how Sri. B.S. Yediyurappa was competent or empowered to issue the letter dated 24.01.2019 to respondent No.2. In this context, learned Senior counsel invites my attention to the constitution of BJP, in order to contend that the power or competency for the State party president, Sri. B.S. Yediyurappa to issue the letter dated 24.01.2019 to respondent No.2 is not found any where in the constitution. Article XVII of the said constitution dealing with the State Executive deals with appointment of a president while Article XXI deals 9 with the term of a president. In the said constitution, the functions of the president, Sri. B.S. Yediyurappa are also described which do not empower or entitle him to issue the aforesaid direction dated 24.01.2019. It is therefore contended that in the absence of any provision in the constitution of the BJP as well as the provisions of the Act, which empower the president of a political party to act on behalf of the party for the purpose of Section 3(b) of the Act, the alleged letter dated 24.01.2019 issued by Sri. B.S. Yediyurappa was neither legal nor valid and in contravention of the provisions of the Act and consequently the said letter was not sufficient to enable or empower respondent No.2 to issue the alleged whip to the petitioners. C. Thirdly, it is contended that a perusal of the whip issued by respondent No.2 will indicate that the same does not conform to the terms of the delegation/authorisation issued by Sri. B.S. Yediyurappa in his favour; it is contended that the whip issued by respondent No.2 as well as the authorisation issued by Sri. B.S. Yediyurappa in his favour will clearly indicate that the 10 same is not in conformity and in deviation of the authorisation and consequently, the whip issued by respondent No.2 is vitiated on this ground also. D. Learned Senior counsel contends that the power to delegate/authorise to issue the whip should flow from the constitution of the political party i.e., the BJP. In this context, it is contended that a perusal of the constitution of the BJP will indicate that for the purpose of delegation/authorisation, the State Party President, Sri. B.S. Yediyurappa, was not the political party and it was the State Executive Committee of the BJP which was the political party for the purpose of Section 3(1)(b) of the Act. It is therefore contended that the authorisation issued by Sri. B.S. Yediyurappa is no authorisation in the eye of law and consequently, the whip issued by respondent No.2 is vitiated on this ground also.
E. Learned Senior counsel further contends that the whip issued by respondent No.2 has not been served upon the petitioners; in this context, it is contended that the material on record with regard to alleged service of 11 whip upon the petitioners contains several ambiguities, inconsistencies, contradictions and discrepancies, which are not capable of being reconciled with one another especially with the pleadings and evidence and as such, in the absence of valid and proper service of whip upon the petitioners the impugned disqualification is also vitiated and the same deserves to be quashed. F. Learned Senior counsel further submits that under Section 3(1)(b) of the Act, the complaint ought to have been issued by respondent Nos.1 and 2 after expiry of a period of 15 days from the date of meeting i.e., 05.02.2019; in the instant case, the complaint issued by respondent No.1 on 05.02.2019 itself is premature and the same was liable to be rejected.
G. In support of his contentions learned Senior counsel places reliance upon the following decisions:
i. Pradeep Sanjeev Shetty & Others Vs. Deputy Commissioner & Others -
W.P.No.21415-420/2017, dated 05.12.2017. ii. Anil Hosamani & Others Vs. Deputy Commissioner & Others - W.P.No.105246- 263/2017, dated 23.11.2017.12
iii. Anitha H. Basavaraj & Others Vs.
Karnataka State Election Commission,
Bengaluru - W.P.No.34488/2015 &
W.P.Nos.34731-34734/2015 dated
25.08.2015.
iv. Payyavulla Vengamma Vs. Payyavulla
Kesanna - AIR 1953 SC 21.
6. Per contra, learned Senior counsel for the respondent No.1 in addition to reiterating the various contentions urged in the Statement of Objections, submits that a perusal of the impugned order passed by the State Election Commission will indicate that the Commission has properly and carefully considered and appreciated all the aforesaid contentions urged on behalf of the petitioners.
Upon careful consideration and appreciation of the entire material on record including the provisions of the Act, the Commission has negatived all the contentions urged on behalf of the petitioners and has consequently allowed the complaints filed by respondent Nos.1 and 2. In this context, it is pointed out that in the present proceedings invoking certiorari jurisdiction of this Court under Article 226 of the Constitution of India, the scope of interference is restricted 13 and limited and this Court does not act as a Court of appeal or revision and correct every error of law or fact so long as the same is not an error apparent on the face of the record. It is therefore contended that so long as the various contentions urged by the petitioners in the present petition including the validity of the whip, competency and jurisdiction of Sri. B.S. Yediyurappa to issue the directions to respondent No.2 as well as the competency and jurisdiction of respondent No.2 to issue the whip, service of the whip upon the petitioners etc., have been properly considered and appreciated by the Election Commission based on the material on record which does not suffer from any legal infirmity or perversity, the impugned order does not warrant interference at the hands of this Court. It is therefore contended that there is no merit in the petition and that the same is liable to be dismissed.
7. In support of his contentions, learned Senior counsel on behalf of respondent No.1 places reliance upon the following decisions:
i. Nagendra Nath Bora and Another Vs. Commissioner of Hills, Division and 14 Appeals, Assam and Others - AIR 1958 SC
398.
ii. Kihoto Hollohan Vs. Zachillhu and Others -
1992 Supp (2) SCC 651.
iii. Sadashiv H. Patil Vs. Vithal D. Teke and Others - (2000) 8 SCC 82.
iv. Shrimanth Balasaheb Patil Vs. Karnataka Legislative Assembly and Others - (2020) 2 SCC 595.
8. I have given my anxious consideration to the rival submissions and perused the material on record, including the decisions relied upon by both sides.
9. A perusal of the impugned order passed by the State Election Commission will indicate that after extracting the pleadings of both sides and referring to the oral and documentary evidence on record as well as the rival contentions, at paragraph No.31 of the impugned order, the Commission formulated the following points for consideration:
1. Whether power of State President of Bharatiya Janatha Party, authorizing District President to issue whip is proved?
2. Whether whips have been duly served?15
3. Whether Respondents have violated the whip?
4. Whether Respondents have incurred disqualification under the Karnataka Local Authorities (Prohibition of Defection) Act, 1987?
5. What order?
10. Point No.1 framed by the Commission deals with the various contentions urged on behalf of the legality and validity of the whip issued by respondent No.2 including the competency of Sri. B.S. Yediyurappa to issue necessary directions to respondent No.2 to issue the whip as well as the competency of respondent No.2 to issue the whip to the petitioners. While considering the said contentions, the Election Commission has taken into account the oral and documentary evidence on record with regard to the directions issued by Sri. B.S. Yediyurappa, as well as the whip issued by respondent No.2. The Commission has also considered the provisions of the Act, in particular, Section 3(1)(b) of the Act. The Commission has also taken into account the constitution of the BJP including the wide and vast powers of the State President of BJP, Sri. B.S. Yediyurappa to take disciplinary action and issue 16 necessary directions to its members including the petitioners. So also, the oral and documentary evidence on record with regard to the directions and the whip have also been considered and appreciated by the Election Commission before rendering its finding on issue No.1. The Commission has also examined the provisions of the Act, especially the definition of 'political party' within the meaning of Section 2(vi) of the Act R/w Section 3(1)(b) of the act, which contemplates that the direction can be issued to the members of a political party either by the political party to which he belongs or by any person authorised by the political party or by any authority authorised by the political party. While dealing with this issue, the Commission has come to the correct conclusion that Sri. B.S. Yediyurappa being the State President of the BJP was empowered and authorised by the BJP to issue necessary directions to respondent No.2. Pursuant to Sri. B.S. Yediyurappa issuing the said directions to respondent No.2 authorising and empowering him to issue the whip to the petitioners, respondent No.2 was a person authorised by the BJP through its party president to issue the 17 whip/direction to the petitioners who violated the same and incurred disqualification under Section 3(1)(b) of the Act. The Commission has also considered the decisions relied upon by the petitioners herein and has come to the correct conclusion that the same do not apply to the facts of the instant case. As correctly held by the Commission, this is not a case of lack or absence of authority or authorisation, but a case where the petitioners had contended that the authority or authorisation was illegal and invalid which they had failed to establish before the Commission. It is therefore seen that the Commission has correctly and property considered and appreciated the material on record in its proper perspective and has come to the correct conclusion that point No.1 formulated above, is to be answered in the negative against the petitioners herein, holding that the authorisation and the whip issued to the petitioners is correct and proper. Under these circumstances, I am of the considered opinion that the reasoning and the findings recorded by the Commission on issue No.1 cannot be said to be perverse or contrary to the material on record warranting interference by this Court. 18
11. A perusal of the impugned order passed by the Commission will indicate that in the light of the specific contention urged on behalf of the petitioners that the whip dated 26.01.2019 was not duly served upon them and that the petitioners were not aware that they were required to obey the directions issued in the whip in respect of the meeting held on 05.02.2020, the Commission formulated point No.2 in this regard in the impugned order regarding service of the whip on the petitioners. At paragraph Nos.58 to 76 of the impugned order, the Commission has discussed the pleadings and oral and documentary evidence as well as the entire material on record with regard to service of whip. During the course of its discussion, the Commission has also taken into account the material on record which indicated that the whip was duly served through post as well as personally at the respective residences of the petitioners together with photographs showing that the whip was affixed on the walls of the said residences. The Tribunal has also considered and appreciated the postal records in the light of Section 27 19 of the General Clauses Act. In order to come to the conclusion that the whips issued to the correct address of the petitioners had been duly served by way of deemed service. The Commission has also noted the various admissions, discrepancies and inconsistencies in the cross- examination of the evidence of the petitioners in order to arrive at the aforesaid conclusion.
12. In addition to the fact that the aforesaid categorical finding of the fact recorded by the Commission with regard to service of whip on the petitioners based on legal and acceptable evidence, the material on record does not indicate that the said findings recorded by the Commission are either perverse or arbitrary or errors apparent on the face of the record so as to warrant interference by this Court under Article 226 of the Constitution of India. As rightly contended by the learned Senior counsel for respondent No.1, in the face of the restricted and limited power of this Court to interfere with findings of fact recorded by the State Election Commission which is Quasi Judicial Tribunal, it cannot be said that the findings of the 20 Commission in this regard suffer from any perversity or illegality warranting interference by this Court. Under these circumstances, this contention urged on behalf of the petitioners deserves to be rejected.
13. Point No.3 formulated by the Commission deals with the issue as to whether the petitioners had violated the whip. In this context also, the Commission has correctly and properly considered and appreciated the entire material on record including the pleadings, oral and documentary evidence, contents of the whip etc., as well as the provisions of the Act and has recorded a categorical finding that in the meeting held on 05.02.2019, the petitioners having voted in favour of the no-confidence motion and not against the no-confidence motion as directed in the whip have clearly violated the whip rendering them liable for disqualification under Section 3(1)(b) of the Act. While arriving at the said conclusion, the Commission has properly and thoroughly scrutinized the entire material on record and the reasoning and findings recorded by the Commission do not suffer from illegality, 21 infirmity or perversity warranting interference by this Court under Article 226 of the Constitution of India. Accordingly, even the finding recorded by the Commission on issue No.5, against the petitioners deserves to be upheld.
14. Insofar as point No.4 formulated by the Commission with regard to whether the petitioners have incurred disqualification under the act is concerned, a perusal of paragraphs 97 to 118 of the impugned order will indicate that the Commission has considered and appreciated all the legal and factual contentions urged by the petitioners including the decisions relied upon by them and has come to the correct conclusion that in the light of the findings recorded on issues 1 to 3, the petitioners had incurred disqualification under the Act. In my considered opinion, even the findings and reasoning of the Commission on issue No.4 are based on correct and proper consideration and appreciation of the entire material on record and the same does not suffer from any illegality, infirmity or perversity warranting interference by this Court in the present petition.
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15. In view of the aforesaid facts and circumstances, I do not find any merit in the petition and the same is hereby dismissed.
SD JUDGE Bmc.