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2009 Supreme(Kar) 1032
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H.N. Nagamohan Das, J.
Byrappa S/o Shivanna and others —Appellant
Vs.
The Deputy Commissioner and others —Respondent
Writ Petition Nos. 19299-311 of 2009
Decided on : 09-12-2009
Advocate Appeared:
Mr. Jayakumar S. Patil, Jayakumar S. Patil Assts., for the Appellant
Mr. Prabhuling S. Navadgi, C/R, M.C. Nagashree, H.C.G.P., A. Nagarajappa, for the Respondent
Headnote:CONSTITUTION OF INDIA - X-Schedule - Anti Defection Laws - Paragraph 2(1)(a) : [H.N.Nagamohan Das,J] Karnataka Local Authorities (Prohibition of Defection) Act, 1987, Section 3(1)(a) Disqualification on the Ground of Defection - Section 3A(a)(i) - Disqualification on the ground of defection not to apply in case of split-conditions to be satisfied for seeking exemption from disqualification -Held, The combined reading of para 2 and 3 of X-Schedule to the Constitution and Section 3 and 3A of the Act, it is clear that the conditions to be satisfied for seeking exemption from disqualification are - (i) There must be a split in the political party; (ii) Such a split in the political party shall reflect in the local body splitting spilt in the political party shall reflect in the local body splitting the elected representatives from such political party; (iii) The group among the elected representatives shall represent a faction which has arisen as a result of split in his political party. On facts held, It is not in dispute that 21 Councillors including the petitioners and 5th respondent were elected on JD(S) political party symbol in the respondent/Municipal Council. There is no plea before the Deputy Commissioner nor before the Court and further there is no evidence to show that there was a split in JD(S) political party. The petitioners voluntarily gave up their membership of their political party JD(S), and formed a front called ’ABHIVRUDHI RANGA’. In the absence of split in the JD(S) political party the petitioners are not entitled to seek exemption of disqualification under Section 3A of the Act. The petitioners, by only forming a separate front without there being a spilt in the JD(S) political party, are liable to be disqualified.
KARNATAKA LOCAL AUTHORITIES (PROHIBITION OF DEFECTION) ACT, 1987 - Sections 3(b) 4(1): [H.N.Nagamohan Das,J] Impugned order disqualifying the petitioners under Section 3(b) of the Act, as members of the respondent/City Municipal Council -Challenge to - Legality of ’Whip’ issued by the State President - Held, Admittedly, the Whip was issued by the State President of JD(S) political party. The petitioners have not produced the Constitution, bye laws, regulations nor rules of JD(S) political party to show that the State President of JD(S) political party had the power to issue the Whip. No resolution passed by the executive committee of the JD(S) political party is placed on record to show that the State President was authorised to issue Whip. Further the State President was not examined before the Deputy Commissioner in support of the contention that he had the power to issue the Whip. Therefore, the Whip issued by the State President of JD(S) political party is not valid. When the Whip was not valid, the question of disobeying the same by the petitioners will not arise. Therefore the petitioners are not liable to be disqualified under Section 3(b) of the Act.
H.N. Nagamohan Das, J.— In these writ petitions the petitioners have prayed for a writ in the nature of certiorari to quash the order dated 30.6.2009 as per Annexure-J passed by the first respondent, under Section 4(1) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short 'Act') disqualifying the petitioners as members of second respondent - City Municipal Council, Mandya.
2. On 28.9.2007 elections were held to the second respondent - Municipal Council to elect 35 councillors from 35 wards. On 30.9.2007 the results of the election were declared and the same was published in the official gazette on 8.10.2007. As per this notification 21 councillors including the petitioners and 5th respondent were elected on Janata Dal (Secular) [for short JD(S)] political party symbol, 6 councillors from Indian National Congress (I) Party. 2 councillors from Bharatiya Janata Party and 6 councillors as independents. These elected councillors in turn elected one Smt. K.C. Nagamma as their President. Subsequently on 27.12.2008 the petitioners and other councillors filed an application before the first respondent to move no confidence motion against the President - Smt. K.C. Nagamma. Accordingly the President of first respondent council called a meeting to be held on 16.01.2009 to consider the motion of confidence. In the meanwhile, the State President of JD(S) party issued a direction popularly called as WHIP on 9.1.2009 as per Annexure-C to all the 21 councillors including the petitioners elected on JD(S) political party symbol to defeat the motion of confidence in the meeting to be held on 16.1.2009 failing which to take appropriate action. This whip dated 9.1.2009 came to be served on the petitioners through the third respondent. - Mandya District President of JD(S) political party. Further the State President as per Annexure-C1 dated 9.1.2009 appointed the fourth respondent as Observer. In violation of the whip issued by the State President of JD(S) political party petitioners voted in favour of motion of no confidence.
3. Before the meeting on no confidence motion, the petitioners gave requisition on 7.1.2009 to the respondents 1 and 2 stating that they have voluntarily left JD(S) political party and formed a front called 'Abhivrudhi Ranga' and requested for separate seating arrangement in respondent - Council meetings.
4. Since the petitioners violated the whip issued by the State President of JD(S) party and that; they have gave up their membership of the party, respondents 3 to 5 filed a complaint before the first respondent as per Annexure-A to disqualify the petitioners as councillors of Municipal council under Section 4 of the Act. In the complaint at Annexure- A, it is contended that petitioners have voluntarily given up their membership of JD(S) political party and have formed a Forum called 'Abhivrudhi Ranga' and therefore they are to be disqualified under Section 3(1)(a) of the Act. Further the petitioners violated the whip issued by the State President of JD(S) political party and voted in favour of the motion in the special meeting held on 16.1.2009 and as such they are to be disqualified under Section 3(b) of the Act. On these grounds respondents 3 to 5 filed the complaint, before the first respondent.
5. Petitioners entered appearance before the first respondent and filed their statement of objections interalia contending that the State President of the JD(S) party has no authority to issue the whip and as such there was no valid whip served upon the petitioners and the question of violating the same will not arise. It is further contended that there is a split among the councillors of JD(S) political party in the respondent - Council and petitioners have formed a political platform by name 'Abhivrudhi Ranga' under the leadership of Petitioner No. 11. Therefore the petitioners contend that there was a split among the elected councillors and as such the disqualification on the ground of defection is
