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2011 Supreme(Kar) 617
High Court of Karnataka
THE HONOURABLE MRS. JUSTICE MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Byrappa S/o. Shivanna & Others
Versus
The Deputy Commissioner & Others
Writ Appeal Nos.89-101 of 2010 (CS-EL/M)
Decided On : 03-11-2011
For the Appellants:Jayakumar S. Patil, Sr. Advocate, M/s. Jayakumar S. Patil Associates, Advocates.
For the Respondents:R2, A. Nagarajappa, HCGA, R3 to R5, Prabhuling K. Navadgi, Advocate.
Voluntarily giving up membership of a political party and the absence of a split in the party can lead to disqualification under the Karnataka Local Authorities (Prohibition of Defection) Act, 1987.
Headnote:
Defection - City Municipal Council - Karnataka Local Authorities (Prohibition of Defection) Act, 1987 - Summary
Fact of the Case:
The appellants, who were elected as Councillors of the City Municipal Council, Mandya, were disqualified for voluntarily leaving the JD(S) political party and forming a separate group called 'Abhivrudhi Ranga'. They sought separate seating arrangements and voted against the party's direction, leading to disqualification under Section 3(1)(a) & (b) of the Act.
Finding of the Court:
The court found that the appellants voluntarily gave up their membership of JD(S) party and there was no split in the party, justifying their disqualification.
Issues: The main issue was whether the disqualification of the appellants from being the Councillors of City Municipal Council, Mandya, was justified.
Ratio Decidendi: The court held that the appellants voluntarily gave up their membership of JD(S) party and there was no split in the party, leading to their disqualification under Section 3(1)(a) of the Act.
Final Decision: The appeals were dismissed, upholding the disqualification of the appellants from the membership of the City Municipal Council, Mandya.
A.N. Venugopala Gowda, J.
These appeals are directed against an order dated 09.12.2009 passed by learned Single Judge in W.P.Nos.19299-311/2009 (reported in ILR 2010 KAR 397), by which, an order dated 30.06.2009 passed by the Deputy Commissioner, Mandya District, Mandya disqualifying the appellants from being the Councillors of City Municipal Council, Mandya, was upheld.
2. The material facts of the case are as follows:
The general election to the City Municipal Council, Mandya (for short ‘the Council), which consists of 35 wards was held on 28.09.2007. Result of the election was declared on 30.09.2007 and was published in the official gazette on 08.10.2007, in terms of which, 21 Councillors were from Janata Dal (Secular) [for short ‘JD(S)’] party, 6 Councillors were from Indian National Congress (I) Party, 2 Councillors were from Bharatiya Janata Party and 6 Councillors, were independents. The appellants were elected as Councillors of ‘the Council’, by being the candidates of JD(S) party. The Councillors in turn elected Smt. K.C. Nagamma, a Councilor who had got elected on JD (S) party election symbol, as the President of the Council.
3. On 27.12.2008, appellants filed an application before Deputy Commissioner, to move no-confidence motion against the President of the Council. On 07.01.2009, appellants submitted a requisition to the Deputy Commissioner and the Commissioner of City Municipal Council, stating that they have voluntarily left JD(S) political party and formed a front called as ‘Abhivrudhi Ranga’ and requested for separate seating arrangements in the Council meetings. To consider the said motion of no-confidence, a meeting of the Council was convened by the Commissioner of the Council, to be held on 16.01.2009.
4. In the meanwhile i.e., on 09.01.2009, the State President of JD(S) party issued a direction, popularly called as ‘WHIP’, to the 21 Councillors elected on JD(S) party symbol to vote against the motion of no-confidence, in the meeting scheduled to be held on 16.01.2009. The whip was served on the JD(S) Councillors through the 3rd respondent-D. Ramesh, Mandya District President of JD(S) political party. S. Balaraj – 4th respondent was appointed as the Observer. The appellants having voted on 16.01.2009 in favour of the said motion, the motion was passed against Smt. K.C. Nagamma.
5. On 09.02.2009, respondents 3 to 5, filed a complaint under Section 4 of Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short ‘the Act’), against the appellants, before the Deputy Commissioner, seeking disqualification of the appellants under Section 3(1)(a) & (b) of the Act, interalia contending that, the appellants violated ‘the whip’ issued by the State President of JD(S) party and that the appellants have also given up membership of the party by forming ‘Abhivrudhi Ranga’ and by seeking separate seating arrangements in the Council meetings. The appellants, who were the respondents in the said complaint, filed objections. The appellants admitted the fact that they filed application moving no-confidence motion against the President of the Council and they having formed ‘Abhivrudhi Ranga’ as their political platform due to a split in the JD(S) political party with 13 Councillors and they having acted in accordance with the decision of political group headed of Mr. K.S. Kumar. However, appellants denied receiving of ‘the whip’. Appellants contended that there is a split among the Councillors of JD(S) political party in the City Municipal Council, Mandya and as such, the disqualification on the ground of defection is not attracted as per Section 3-A of the Act.
6. Before the Deputy Commissioner, to prove the complaint, PW-1 to PW-3 deposed and Exs.P-1 to P-9 were marked. For the respondents in the complaint, RW-1 to RW-10 deposed and Exs.D-1 to D-3 were marked. After considering the rival contentions and the record of the case, Deputy Commissioner raised the following points for consideration:
1.
