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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
N.S. Sanjay Gowda, J.
Smt. Savita W/o. Channabasu Hurakadli and Ors. –Petitioners
Versus
The District President, Bharati Janata Party and ors. – Respondents
Writ Petition No.104407 of 2021 (Lb Res)
Decided On : 16-12-2022
Election - Karnataka Local Authorities (Prohibition of Defection) Act, 1987 - Section 3 - Summary of Acts and Sections: The court discussed the provisions of Section 3 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987, which provides for disqualification of a councilor belonging to a political party if they vote contrary to a direction issued by the party without obtaining prior permission or if the act is not condoned by the party. The court highlighted the importance of communication of the direction to the councilor and the need for rules to prescribe the mode of communication.
Fact of the Case:
A notification was issued for the conduct of an election to the post of President/Vice-President of the Town Municipal Council. The President of the State BJP party authorized the District President to decide the manner of conduct and voting. A meeting was convened, and a direction was issued to cast votes in favor of specific candidates. The petitioners contested the election against the official candidates and a complaint was lodged for disqualifying them under the Act.
Finding of the Court:
The court found that the direction issued by the political party was not communicated to the petitioners in a manner known to law, and mere affixture of the direction on their doors was not sufficient to establish service. The court also observed the absence of statutory rules prescribing the manner of communication of the direction.
Issues: The key issues were the validity of the direction issued by the political party, the mode of communication of the direction to the councilors, and the absence of statutory rules prescribing the mode of communication.
Ratio Decidendi: The court held that the disqualification of a councilor under the Act requires clear proof of the direction being communicated or served to the councilor. It emphasized the need for rules to prescribe an acceptable mode of communication of the direction by the political party to its elected members.
Final Decision: The court quashed the order of disqualification, citing lack of proof of the direction being communicated to the petitioners, and issued guidelines for communication of directions by political parties until statutory rules are framed.
ORDER :
1. On 29.10.2020, a notification was issued for the conduct of an election to the post of President/Vice-President of the Town Municipal Council, Mahalingapur on 09.11.2020.
2. The President of the State BJP party, by his communication dated 01.11.2020, had authorised the District President of the BJP party to decide the manner in which the members of the BJP were supposed to conduct themselves and also decide in whose favour the vote was to be cast for the elections which was scheduled to be conducted on 09.11.2020 for the post of President and Vice-President.
3. On the strength of this authorization, on 07.11.2020, a meeting of the elected Councilors of the BJP party was convened by the District President of the Bagalkot division of the BJP party.
4. In this meeting, it was resolved therein that the 3rd respondent was to be the official contestant of the BJP for the post of President and the 2nd respondent was to be the official contestant of the BJP for the post of Vice-President.
5. In this meeting, a direction was stated to have been issued to the members of the BJP party directing them to cast their votes in favour of the official candidates i.e., the 3rd and 2nd respondents.
6. In this meeting, it was stated that only 10 of 13 members belonging to the BJP party were present and the remaining three members i.e., the petitioners were absent. It was stated that since the petitioners were not present in the meeting, the direction dated 07.11.2020 issued to Councilors of Mahalingapur Town Municipal Council to cast their votes in favour of 2nd and 3rd respondents was stated to have been communicated to the petitioners by way of affixture of the direction on the doors of their houses.
7. On 09.11.2020, elections were conducted and, in these elections, the 1st and 2nd petitioner contested the election against the official candidates and the 3rd petitioner was absent to the meeting.
8. In the elections, the 1st and 2nd petitioner and the official candidates secured an equal number of 10 votes and in view of the tie, the elections were decided by the toss of a coin.
9. The coin did not fall in favour of the 1st petitioner and she lost. However, the coin fell in favour of the 2nd petitioner and she was elected as the Vice President.
10. As the petitioners had cast their votes in contravention of the direction, a complaint was lodged for disqualifying the petitioners under the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, the Act).
11. The Deputy Commissioner proceeded to conduct an enquiry and passed an order on 08.04.2021 to the effect that the petitioners had acted in contravention of the direction issued by the person authorized by their political party and as a consequence they had incurred disqualification for being Councilors.
12. This order of the Deputy Commissioner was challenged by filing of a Writ Petition in W.P. No.102096/2021(LB RES) before this Court. This Court, after hearing the petitioners, was pleased to allow the writ petition and quashed the order of the Deputy Commissioner and directed the Deputy Commissioner to reconsider the matter within a period of 60 days from 16.08.2021.
13. In the course of said order, this Court also observed that the Deputy Commissioner had committed an error in concluding that the direction (whip) was duly served upon the petitioners by affixture i.e., by pasting the same on the doors of members without appreciating that in the absence of any steps taken to the petitioners in a manner known to law i.e., by RPAD, courier or by personally serving a whip upon the petitioners. It was observed that mere pasting of the whip on the doors of petitioners’ houses was not sufficient to hold that the whip had been duly served on them.
14. Pursuant to the said order, the Deputy Commissioner has reconsidered the matter and has come to the conclusion that the whip was indeed pasted on the doors of the petitioners’ houses and though this was disputed, as t
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