Disqualification under Section 3(1)(b) of the Act does not prohibit a disqualified person from contesting a subsequent by-election or election, as interpreted in Article 191(2) of the Constitution of India.

ORDER :

1. The learned AGA accepts notice for respondents No.1 and 2.

2. Sri.Preethan Jude Correa, counsel accepts notice for respondent No.3.

3. The petitioner is before this Court seeking for the following reliefs:

a. Quashed – A order dated 16.12.2023 passed by the 2nd respondent.

b. Issue such other writ, order or direction as maybe deemed necessary in the interest of justice and equity.

4. Respondent No.3 being elected as a councillor to the Chintamani City Municipal Council, Chintamani was disqualified under Section 3(b) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, ‘the Act’) by the Deputy Commissioner and Election Officer, Chikkaballapur vide order dated 22.04.2022. Challenge made to the said order in W.P.No.10298/2022 was dismissed by this Court vide order dated 30.06.2022 which was challenged in W.A.No.627/2022 wherein the matter was remanded to the Deputy Commissioner. The Deputy Commissioner by an order dated 28.10.2022 once again passed an order of disqualification. The second order of disqualification was challenged by respondent No.3 in W.P.No.22225/2022 which came to be dismissed vide order dated 16.11.2022. The matter being taken up on appeal, the Division Bench dismissed the same vide its order dated 13.02.2023 in W.A.No.1242/2022. Thereafter, by-election being declared, respondent No.3 submitted his nomination papers, which came to be accepted. It is challenging the same, the petitioner is before this Court.

5. Smt.Radha Jayanthi, learned counsel for the petitioner would submit that:

5.1. The respondent No.3 having been disqualified, the question of accepting the nomination papers would not arise. Upon disqualification, respondent No.3 is also disqualified from contesting the by-election. As such, the acceptance of the nomination would have to be set aside and respondent No.3 be restrained from contesting in the election to be held on 27.12.2023.

6. Sri.Naveen Chandrashekar, learned AGA appearing for respondents No.1 and 2 would submit:

6.1. By relying upon the decision of the Hon’ble Apex Court in the case of Shrimanth Balasaheb Patil vs. Speaker, Karnataka Legislative Assembly and others, (2020) 2 SCC 595 more particularly Paras 127 to 131 thereof would submit that the disqualification does not prohibit the disqualified person from contesting an election. The disqualification being under Section 3(1)(b) of the Act, the disqualification is virtually on account of violation of Tenth Schedule which has been considered by the Hon’ble Apex Court in Shrimanth Balasaheb Patil’s case and the Hon’ble Apex Court has come to a categorical conclusion that there is a difference in phraseology used in Article 191(1) and Article 191(2) of Constitution of India. Article 191 (1) of the Constitution of India speaks of disqualification for being chosen as and for being a member of the house whereas Article 191 (2) of the Constitution of India speaks of only a person being disqualified for being a member of the Legislative Assembly or Legislative Council.

6.2. Thus, he submits that the disqualification which is now made under Section 3(1)(b) of the Act is one made under Article 191(2) of the Constitution of India and as such, the disqualification when the order was passed was only for being a member and not for being chosen as a member and as such, he submits that the order of such disqualification would not impose embargo on contesting in a fresh election. On these grounds, he submits that the Writ Petition is required to be dismissed.

7. Sri.Preetham Judge Correa, learned counsel for respondent No.3 adopts the submissions of the learned AGA.

8. Heard Smt.Radha Jayanthi, learned counsel for the petitioner, Sri.Naveen Chandrashekar, learned AGA appearing for respondents No.1 and 2 and Sri.Preetham Judge Correa, learned counsel for respondent No.3 and perused the papers.

9. The point that would arise for consideration is whether a disqualification made of a councillor under Section 3(1)(b) of the Act w