ORAL ORDER

(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

The petitioners are before this Court seeking for the following reliefs:

1. Issue a writ of Certiorari or any appropriate writ by quashing the impugned order dated 31.07.2023

passed on the File No. DCRAI-PDO ADMI/392/2003-

PD (UD) Raichur by the 1%‘ Respondent Deputy Commissioner Raichur at Annexure-D in the interest of justice and equity.

2. Pass any other order, which the Hon’ble court deems fit in the interest of justice and equity.

The petitioners were elected as Councillors of TMC, Lingasugur under the ticket and banner of the Indian Congress Party. The respondent No.3 filed a complaint to the Deputy Commissioner alleging that the petitioners have indulged in anti-party activities and have joined one other party, namely Kalyana Rajya Pragathi Paksha (KRPP) and _ in_ that background sought for disqualification of the petitioners. The Deputy Commissioner having considered the said complaint vide the impugned order dated 31.07.2023 disqualified the petitioners.

It is challenging the same that the petitioners are before this Court.

3. Sri.Sanjay Kulkarni, learned counsel for the petitioners would submit that:

3.1. a complaint could not have been filed directly to the Deputy Commissioner. The complaint was required to be filed by the complainant to the Chief Executive Officer of the TMC in terms of sub-section (1) of Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, ‘the Act of 1987). Since the complaint was filed directly to the Deputy Commissioner and did not pass through the Chief Executive Officer, the Deputy Commissioner could not have considered the said application. As such, he raises the question of jurisdiction of the Deputy Commissioner to consider the application.

3.2. Secondly, he submits that the _ petitioners continue to be members of the Karnataka Pradesh Congress Committee; there being identity card issued in favour of the petitioners and therefore, he submits that the petitioners have not joined Kalyana State Pragati Party as alleged. Hence, there is no question of any defection on part of the petitioners and on that basis, he submits that the disqualification under Section 3A of the Act of 1987 is not attracted.

As such, he submits that the impugned order is required to be set aside.

4. Sri.Deepak Barad, learned counsel for respondent No.3-complainant would submit that:

4.1. the ultimate authority to take decision being the Deputy Commissioner, the Chief Executive Officer being only the receiving authority of the complaint, the filing of the complaint to the Deputy Commissioner directly would not be in violation of sub-section (1) of Section 4 of the Act of 1987 and in this regard, he relies on the decision of this Court in the case of SURESH AND ORS VS. THE STATE OF KARNATAKA AND ORS‘, more particularly Para 37 thereof, which is reproduced hereunder for easy reference:

"37. The mere fact that it has reached through the Project Director would not have any adverse impact, inasmuch as neither the Chief Officer nor the Project Director have taken any action on the said complaint. The Chief Officer has acted as a_ post office/messenger, having received’ the complaint and has forwarded to the Project Director who also acted as a post office and forwarded it to the Deputy Commissioner. It is only the Deputy Commissioner who initiated action on 19.11.2020 by issuance of a show-cause notice hence this anomaly which is pointed out by Sri.Shivaraj P Mudhol

would not enure to the benefit of the petitioners.”

4.2. He also relies upon the decision of the Hon’ble Division Bench of this Court in the case of DHARMAPPA SABANNA MADAR VS. CHIEF ‘WP No.105239/2021 dated 21.4.2022 SECRETARY, ZILLA PARISHAD? more particularly Para 9 thereof which is reproduced hereunder for easy reference:

9. With this, we pass on to the scope of Sub-

section