Point of Law: Election - Disqualification on ground of defection - Petitioner has violated the whip and invited the impugned order. Violation alleged in terms of Section 4 with regard to 24 hours as held by this Court is directory and not mandatory and with regard to completion of proceedings within 60 days as mandated under Section 4(2) of Act.

ORDER :

The petitioner in this writ petition calls in question the order dated 26-07-2021 by which the petitioner is disqualified to be a Member of the Koratagere Town Panchayat, Koratagere, Tumkur District (hereinafter referred to as the ‘Panchayat’ for short) invoking the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (hereinafter referred to as ‘the Act’ for short).

2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:

The petitioner, a resident of Koratagere was elected as a Member of the Panchayat pursuant to elections conducted on 31.08.2018 under Janatha Dal (Secular) ticket. Though elections were held on 31.08.2018 neither committees were constituted nor elections to the office of President or Vice-President took place. After about two years of elections of Members to the Panchayat, elections for the office of the President and Vice-President were set in motion by issuance of calendar of events on 27-10-2020 directing that elections would be held for the offices of President and Vice-President on 5-11-2020. On issuance of calendar of events, the 6th respondent/President of Tumkur District Janatha Dal (Secular) issued a whip to all the Members of his party including the petitioner on 28-10-2020 for attending the meeting and voting in the elections.

3. The elections were held on 5-11-2020 to which the petitioner remained absent and the resultant position is that a particular candidate of a different political party was elected. After about 5 days of elections, the petitioner submitted a certificate on 10-11-2020 which depicted that the petitioner was suffering from viral fever and was under treatment on 3-11-2020 and was advised bed rest for a week from 3-11-2020. The petitioner gave this as a reason for not attending the meeting/elections that were slated to be and held on 5-11-2020. On the ground that the petitioner had violated the whip that was issued, the President of the party who had issued the whip communicated to the Chief Officer of the Panchayat for removal of the petitioner from the membership of the Panchayat on the ground that she has violated the whip invoking the provisions of the Act. This was communicated to the Deputy Commissioner as well who issued a show cause notice to the petitioner on 17-03-2021 seeking the petitioner to show cause as to why she should not be removed from membership of the Panchayat invoking the provisions of the Act. The petitioner gave her reply on 23.03.2021. Not being satisfied with the reply, proceedings were instituted before the Deputy Commissioner under the Act resulting in passing of the impugned order removing the petitioner from the primary membership of the Panchayat on the ground that the petitioner had violated the whip and had to undergo action under the Act. It is this order of the Deputy Commissioner dated 26-07-2021 that is called in question in this writ petition.

4. Heard Sri V.S.Ugrappa, learned counsel appearing for the petitioner, Sri C.M.Poonacha, learned Additional Government Advocate along with Sri Nithyananda K.R., learned High Court Government Pleader appearing for respondents 1, 2 and 4, Sri A.Nagarajappa, learned counsel appearing for respondents 3 and 5 and Sri G.S.Balagangadhar, learned counsel appearing for Respondent No.6.

5. The learned counsel Sri V.S.Ugrappa, appearing for petitioner, would vehemently argue and contend that in terms of Section 4 of the Act communication for initiation of proceedings against an alleged defectionist is to be made within 24 hours to the Competent Authority. Elections took place on 5-11-2020 and the complaint was lodged by the 6th respondent/President of the party on 18.01.2021 and the complaint is placed for consideration before the Deputy Commissioner on 08-02-2021. He would urge the following contentions:

(i) The action of the Deputy Commissioner is in violation of the mandate of Section 4. The Deputy Commissioner had to compl