Only a member, councillor, or political party can file a complaint regarding disqualification on the ground of defection under Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987. The complaint should be filed by the political party itself or its authorized representative. Non-compliance with the requirements of Section 4(1) and the absence of a legal and valid authorization by a political party are not mere technical or procedural irregularities, but go to the root of the matter.

ORDER :

This petition is directed against the impugned order dated 10.05.2022 passed by the first respondent-Deputy Commissioner whereby the petitioner was disqualified from the membership of the second respondent-City Municipal Council (CMC), Gangavathi under Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short ‘the said Act of 1987’) pursuant to a complaint filed by the third respondent.

2. Heard Sri Jayakumar S. Patil, learned Senior Counsel for the petitioner and Sri S.S. Yadrami, learned Senior Counsel for the third respondent as well as the learned HCGP for first respondent-State and learned counsel for second respondent-CMC and perused the material on record.

3. In addition to reiterating the various contentions as urged in the memorandum of writ petition, learned Senior Counsel for the petitioner invited my attention to the document at Ex.P.6 marked on behalf of the third respondent in the proceedings before the first respondent in order to point out that the said communication at Ex.P.6 dated 24.10.2020 authorizes the third respondent herein only to issue the whip but does not authorize him to file a complaint under Section 4 of the said Act of 1987. In this context, it is submitted that the third respondent was neither a member of the second respondent-CMC nor was he a Councillor of the second respondent-CMC and in the absence of a specific authorization by the Bharatiya Janata Party authorizing him to file the instant complaint, the same was impermissible in law as per Sec. 4 and consequently, since the complaint filed by the third respondent itself was not maintainable and the same was liable to be dismissed in limine and failure to appreciate this by the first respondent-Deputy Commissioner in the instant proceedings has resulted in erroneous conclusion and consequently the impugned order disqualifying the petitioner deserves to be set aside. It is also submitted that so long as the third respondent-complainant sought to file the instant complaint on behalf of the political party, it was essential that the complainant should be the political party itself represented by its authorized representative and not the third respondent and on this ground also, the impugned order deserves to be set aside. In support of his contention, learned Senior Counsel places reliance upon a judgment of the co-ordinate bench of this Court in the case of Smt. Kittur Yasmin Riyaz Vs. Deputy Commissioner (ILR 2009 KAR 47).

4. Per contra, learned Senior Counsel for respondent No.3 submits that the document at Ex.P.6 dated 24.10.2020 issued by the National President of the Bharatiya Janata Party authorizes the third respondent not only to issue a whip but also to file a complaint and as such, it cannot be said that there was no authorization for the third respondent to file the instant complaint. Secondly, it is contended that mere technicalities or procedural irregularities should not be relied upon to set aside orders passed by the Deputy Commissioner. Thirdly it is contended that the judgment in Kittur Yasmin Riyaz’s case supra relied upon by the petitioner is distinguished in a subsequent judgment of this Court in Smt. Bhagyamma Vs. Govt. of Karnataka (W.P. No. 14171/2021 dated 08.09.2021) and as such the said judgment cannot be relied upon by the petitioner. It is therefore contended that the impugned order passed by the first respondent-Deputy Commissioner does not warrant interference by this Court in the present writ petition. In support of his contentions, reliance is placed on the following decisions :

(i) Smt. Bhagyamma G.N. Vs. Govt. of Karnataka (W.P. No. 14171/2021 dated 08.09.2022);

(ii) H.S. Devaraj Vs. State Election Commissioner (ILR 2000 KAR 1493);

(iii) Bhimabai Vs. Deputy Commissioner (W.A. No. 10115/2011 dated 10.08.2011); and

(iv) Makandar Zakir Hussain Vs. Deputy Commissioner (2011 SCC Online KAR 4530).

5. I have given my anxious consideration to the rival submissions and perused the ma