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2002 Supreme(Kar) 617
Karnataka High Court
ANANDA LAKSHMI - Appellant
Versus
DEPUTY COMMISSIONER, MYSORE DISTRICT, mysore - Respondent
Decided On : 09-30-02
W.P. : 21903 of 2002
A.NAGARAJAPPA, Ravivarma Kumar, Suman Hegde, T.H.Narayan
Headnote:Violation of party whip
KARNATAKA LAND REFORMS APPELLATE AUTHORITY RULES
Section 3A and 3(1)(b) -Contention of no disqualification in case of split in the party -rejected -consequently petitioner disqualified for defection -whip issued by the party -admission made in acquiescence as to the factum of whip -evidence adduced -cognizance taken of -not condoned.
[H. Rangavittalachar, J.] - Therefore, one of the basic Ingredient of Sec.3A was not proved by the petitioners. Even on this ground, petitioners were not entitled to advance the theory of split. Therefore, the Deputy Commissioner committed no error of record while appreciating the evidence nor while evaluating the evidence has acted illegally. This finding of the Deputy Commissioner based on facts is a finding of fact in the absence of the above stated reasons, has to be accepted. Therefore, the theory of split advanced by the petitioners deserves to be rejected. Similarly, in SOWCAR T THIMMAPPA Vs S L PRASAD AIR 1978 KARNATAKA 25, Venkatachalaiah, J as he then was, speaking for the Bench, has echoed the ruling in Nagubhal Ammal s case in the following words: "it is no doubt true that admissions are not conclusive but, what a party himself admits to be the true state of affairs may reasonably be presumed to be so unless the admission is satisfactorily explained or successfully withdrawn". There cannot be any room to doubt that the petitioners had admitted both by record and by evidence in clear and unambiguous terms that a "whip was issued to them which they disobeyed". It is not the case of the petitioners either before the Deputy Commissioner or before the Court, this Admission was made either without knowledge of the facts or on a wrong understanding of facts. They have not even retracted from the admission while filing this petition. Per contra, they have reiterated the Admissions made by them. Having categorically "Admitted in clear and unambiguous terms. It is not open to the petitioners to contend that this admission must be ignored and some more positive evidence must be insisted by independent witnesses in proof of the said fact; even on the Court, petitioner has to fall as there has been the evidence of the President of the DCC, to the effect that he had issued a whip which the petitioners had disobeyed. Nowhere it is stated who are the competent persons to issue a whip or authorised to issue a whip. The best person to say in this regard in the absence of any rules or regulations governing is the very President of the party who has spoken to above. Looked, from the admissions and the evidence of PW2, it cannot be said that the Deputy Commissioner had committed any error either of law or record when he has held that a whip was issued to the petitioners.
Cases Referred : 1989 (3) Kar.L.J 331; 2000 (2) KCCR 1250; 1990 (2) Kar.L.J 221; AIR 1956 SC 593; (1840) 6 MNW 664; AIR 1978 Kant 25.
( 1 ) WRIT petitioners have challenged the order passed by the Deputy commissioner, Mysore District, dated 25-7-2002 declaring them as being disqualified to hold the office of Municipal Councillors, Town Municipal council, Hunsur. ; briefly stated the facts as gathered from the arguments and the records are: by a Gazette Notification, dated 8-5-2002 in ELN 90 (1) /2000-01, the deputy Commissioner, Mysore, notified 23 persons as elected members for the Town Municipal Council, Hunsur. As per the notification, 9 councillors were from the Indian National Congress (referred to as 'inc' for brevity) including the writ petitioners herein, 8 from the Janata Dal (S), 3 from Bharatiya Janata Party and 3 independents among them being Ambi Sridhar and Hazrath Jan.
( 2 ) FOR the post of President and the Vice-President of the Hunsur municipal Council, elections were held on 30-12-2001. The INC had set up Smt. Ananda Lakshmi as its candidate for the post of President and sri I ). Narayana, 5th respondent herein, for the post of Vice-President. According to the contesting respondents, a whip was issued by the Congress party to all the elected Councillors to cast their votes in favour of the official candidates for the post of President and to the post of Vice- president-D. Narayana. The 1st petitioner-Smt. Ananda Lakshmi was unanimously elected as the President. Since both the petitioners herein who were members of the INC Party, contrary to the whip issued, voted against the official candidate D. Narayana and in favour of the Janata dal candidate Kannaiah, the said official candidate D. Narayana was defeated and Kannaiah was elected.
( 3 ) SUBSEQUENT to the result of the election of President and Vice- president being declared, respondents 3 to 7 herein filed a complaint under Section 3 (l) (b) of the Karnataka Local Authorities (Prohibition of defection) Act, 1987 (hereinafter referred to as the 'act' for brevity) before the Deputy Commissioner, Mysore for disqualifying the writ petitioners herein as having violated the provisions of the Act. The petitioners herein defended the petition by contending that they and the two councillors-Ambi Sridhar and Hazrath Jan who were also Congress party Members constituted a group consisting of not less than l/3rd of the Congress Party Councillors as a result of split in the Congress Party and they voted for the elected Vice-President Kannaiah, as a separate faction. Therefore, having regard to language of Section 3-A of the Act, they did not suffer any disqualification. Alternatively, they also contended that the issuing of a whip was not in order.
( 4 ) THE Deputy Commissioner framed two issues as arising for his derision having regard to the rival contentions taken before him, namely. 1. Whether under Section 3-A of the Act, respondents 1 and 2 and the 2 independent members constitute the group representing a faction which has arisen as a result of split in the inc Party. Whether such group consists of not less than 1/3rd of the members of such political party. 2. Whether respondents 1 and 2 have violated Section 3 (l) (b) of the Act?
( 5 ) ON Issue 1, Deputy Commissioner held "that the 2 Councillors ambi Sridhar and Hazrath Jan were declared elected as Councillors as 'independent candidates' in the Gazette Notification. Subsequent to the said declaration, except producing a receipt signed by the District Congress committee Secretary for having received Rs. 21- to prove Ambi sridhar was a primary member of Congress, and examining Chandra prabha Urs, R. W. 3 to the effect that both the Councillors had joined the inc on the day of the result, no other material was produced in proof of the 2 Councillors being admitted to Congress Party. More so when the evidence in this regard was conflicting among the members of Congress party inasmuch as the DCC President had said they were not admitted to the party, and in the absence of any corroborative evidence, it cannot be said that the 2
