Dismissed

Bhagyamma G N v. the Government of Karnataka

Karnataka HC8 Sept 2021WP/14171/2021

Case brief

AI extract

What is this about?

Writ petition by an elected member of a Town Panchayat challenging her disqualification under the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 for absenting herself from the meeting to elect the President and Vice-President despite a party whip. The High Court rejected the pleas of delay, breach of the 60-day limit and denial of opportunity, and dismissed the petition.

What the court decided

AI extract

Bhagyamma G N Vs the Government of Karnataka — Election Law | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.14171/2021 (LB-RES)

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BETWEEN:

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SMT.BHAGYAMMA G.N., W/O GANESH V., AGED ABOUT 37 YEARS RESIDING AT RAMANNAJJANA BEEDHI WARD NO.9, KORATAGERE TOWN – 572 129 TUMAKURU DISTRICT.

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... PETITIONER

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(BY SRI UGRAPPA V.S., ADVOCATE (PHYSICAL HEARING))

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AND:

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THE GOVERNMENT OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF MUNICIPAL ADMINISTRATION DR AMBEDKAR VEEDHI BENGALURU – 560 001.

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THE DEPUTY COMMISSIONER TUMAKURU DISTRICT TUMAKURU – 571 202

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THE CHIEF OFFICER KORATAGERE TOWN PANCHAYATH KORATAGERE – 571 202

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TUMAKURU DISTRICT.

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THE TAHSILDAR / RETURNING OFFICER THE TOWN PANCHAYATH KORATEGERE TOWN – 572 101 TUMAKURU DISTRICT.

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THE TOWN PANCHAYATH KORATAGERE TOWN – 572 101 TUMAKURU DISTRICT REPRESENTED BY ITS CHIEF OFFICER

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SRI R.C.ANJINAPPA PRESIDENT TUMAKURU DISTRICT JANATHA DAL (S) ASOKA ROAD, TUMAKURU – 572 101.

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SMT.MANJULA W/O SATHYANARAYANA THE PRESIDENT, KORATAGERE TOWN PANCHAYTH, KORATAGERE – 572 101.

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SMT.K.V.BHARATHI W/O SIDDAMALLAPPA VICE PRESIDENT, KORATAGERE TOWN PANCHAYATH, KORATAGERE – 572 101.

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... RESPONDENTS

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(BY SRI C.M.POONACHA, AGA A/W

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SRI NITHYANANDA K.R., HCGP FOR R1, 2 AND 4 (PHYSICAL HEARING)

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SRI A.NAGARAJAPPA, ADVOCATE FOR R3 AND R5 (PHYSICAL HEARING)

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SRI G.S.BALAGANGADHAR, ADVOCATE FOR R6 (PHYSICAL HEARING)

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NOTICE NOT ORDERED IN RESPECT OF R7 AND R8))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORD FROM THE OFFICE OF THE R2 PERTAINS TO THE IMPUGNED ORDER DATED 26.7.2021 PASSED BY THE R2 AT ANNEXURE-K; QUASH THE

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IMPUGNED ORDER DATED 26.7.2021 PASSED BY THE R2 IN CASE AT ANNEXURE-K.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.08.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-

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ORDER

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The petitioner in this writ petition calls in question

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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).

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Brief facts leading to the filing of the present

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petition, as borne out from the pleadings, are as follows:

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The petitioner, a resident of Koratagere was

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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

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31.08.2018 neither committees were constituted nor

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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 6^th 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.

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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

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10-11-2020 which depicted that the petitioner was

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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

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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

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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.

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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.

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The learned counsel Sri V.S.Ugrappa, appearing

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for petitioner, would vehemently argue and contend that

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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 6^th respondent/President of the party on 18.01.2021 and the complaint is placed for consideration before the Deputy Commissioner on

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08-02-2021. He would urge the following contentions:

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(i) The action of the Deputy Commissioner is in violation of the mandate of Section 4. The Deputy Commissioner had to complete the proceedings in 60 days time as depicted in sub-section (2) of Section 4 of the Act.

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(ii) The Deputy Commissioner takes 154 days to complete the proceedings as against the mandate of the statute which depicts completion of proceedings in 60 days. Here again the impugned order is in violation of the statute.

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(iii) No opportunity worth the name was given to the petitioner to defend the action.

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(iv) The petitioner had produced medical certificate issued by the competent Physician which ought to have been taken into consideration.

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(v) There was no election conducted at all as there was only one contestant each for the offices of President and Vice-President.

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On the aforesaid grounds, the learned counsel would submit that the order impugned is vitiated. He would place reliance upon the following judgments:

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(i) Smt.Kittur Yasmin Riyaz & Another Vs. Deputy Commissioner, Uttara Kannada District & Others¹

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(ii) Ravi S. Naik Vs. Union Of India And Others²

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(iIii) Sadashiv H. Patil Vs. Vithal D.Teke And Others³

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2 AIR 1994 SC 1558

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3 (2000)8 SCC 82

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1 ILR 2009 KAR 47

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On the other hand, learned Additional Government Advocate and the learned counsel

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appearing for 6^th respondent/President, in unison, have raised the following contra contentions:

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(i) The petitioner was admittedly absent when elections took place on the plea that she was unwell.

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(ii) It is undisputed that the petitioner had violated the whip that was issued by the party.

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(iii) The Act though directs that the complaint be placed before the Competent Authority within 24 hours, the same is directory and not mandatory.

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(iv) With regard to the proceedings that have gone on for 154 days as against 60 days, both the learned counsel would submit that due to prevailing situation of COVID-19 the Deputy Commissioner had to cancel the sittings on three occasions as he was in-charge of entire District monitoring COVID19 cases.

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(v) The petitioner was afforded all opportunities in the proceedings who never raised any of the objections that are now being raised herein before the Deputy Commissioner.

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The learned counsel would place reliance upon the following judgments:

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(i) Dharmappa Sabanna Madar Vs. Chief Secretary⁴

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(ii) Dharmappa Sabanna Madar Vs. Chief Secretary, Zilla Parishad⁵

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(iii) H.S.Devaraj and others Vs. State Election Commissioner and Others⁶

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(iv) Ireppa Thirakappa Shouradha Vs. Deputy Commissioner, Haveri District, Haveri⁷

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In reply, the learned counsel for the petitioner

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would submit that the whip, is no whip at all, in the eye

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of law as the party President of the District had no

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4 ILR 1990 KAR 1637

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5 ILR 1991 KAR 3723

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6 ILR 2000 KAR 1493

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7 (2005)2 KAR.L.J. 193

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authority to issue the whip as ‘B’ Form for contesting elections was signed by the National President Sri H.D.Deve Gowda.

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I have given my anxious consideration to the respective submissions made across the bar and in furtherance whereof, the only issue that calls for my consideration is,

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Whether removal of the petitioner from primary membership of the Panchayat is valid in the eye of law?

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The facts aforementioned and undisputed do not call for reiteration. The petitioner was elected as a Member of the Panchayat on 31.08.2018. Elections for the offices of President and Vide-President of the Panchayat were slated to be held on 5.11.2020 by a notice issued by the Tahsildar and the Returning Officer drawing up calendar of events. The calendar of events reads as follows:

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“ PÀ£ÁðlPÀ ¥ÀlÖt ¥ÀAZÁAiÀÄw (CzsÀåPÀëgÀ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ) ZÀÄ£ÁªÀuÉ (wzÀÄÝ¥Àr) ¤AiÀÄªÀÄUÀ¼ÀÄ 1977 gÀ ¤AiÀÄªÀÄ 8 gÀ ¥ÀæPÁgÀ PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁAiÀÄw ¸ÀzÀ¸ÀågÀ ¸À¨sÉAiÀÄ£ÀÄß CzsÀåPÀëgÀ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ£ÀÄß ZÀÄ£Á¬Ä¸ÀÄªÀ §UÉÎ ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼À CzsÀåPÀëvÉAiÀÄ°è ¢£ÁAPÀ:05-112020 gÀAzÀÄ PÉÆgÀlUÉgÉ ¥ÀlÖt¥ÀAZÁAiÀÄw ¸À¨sÁAUÀtzÀ°è ªÀÄzsÁåºÀß:100 UÀAmÉUÉ ¸À¨sÉ PÀgÉAiÀÄ¯ÁVzÉ. DzÀÄzÀjAzÀ ¸ÀzÀj ¸À¨sÉUÉ ºÁdgÁUÀÄªÀAvÉ E ªÀÄÆ®PÀ PÉÆÃgÀ¯ÁVzÉ.

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«ÄÃ¸¯Áw «ªÀ gÀ À

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CzsÀåPÀëgÀÄ: ¥Àj²µÀÖ ¥ÀAUÀqÀ ªÀÄ»¼É

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G¥ÁzsÀåPÀëgÀÄ:¸ÁªÀiÁ£Àå

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¢£ÁAPÀ:05-11-2020 gÀAzÀÄ ¸À¨sÉAiÀÄ°è ZÀÄ£ÁªÀuÁ ªÉÃ¼Á ¥ÀnÖAiÀÄAvÉ F PÉ¼ÀUÉ £ÀªÀÄÆ¢¹zÀAvÉ ¤ªÀð»¸À¯ÁUÀÄªÀÅzÀÄ.

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		PÁAiÀiÁð®AiÀÄzÀ°è.
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Pursuant to drawing up of calendar of events in terms of the notification dated 27-10-2020, the President of the Karnataka Pradesh Janatha Dal (Secular) of Tumkur District issued whips to every one of its members including the petitioner. The whip so issued to the petitioner reads as follows:

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“gÀªÀjUÉ

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²æÃªÀÄw ¨sÁUÀåªÀÄä f.PÉÆÃA UÀuÉÃ±ï « gÁªÀiÁdÓt£À©Ã¢ 9£ÉÃ ªÁqïð ¥ÀlÖt ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄ PÉÆgÀlUÉgÉ mË£ï ªÀiÁ£ÀågÉ

¶107

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PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬Äw CzsÀåPÀëgÀ / G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉ «µÀAiÀÄªÁV ¢£ÁAPÀ 05/11/2020 gÀAzÀÄ UÀÄgÀÄªÁgÀzÀAzÀÄ ¨É½UÉÎ 1100 UÀAmÉUÉ PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬Äw ¸À¨sÁAUÀtzÀ°è CzsÀåPÀëgÀ / G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÁ ¸À¨sÉAiÀÄ£ÀÄß PÀgÉAiÀÄ¯ÁVzÉ F ¸À¨sÉAiÀÄ°è PÀ£ÁðlPÀ ¥ÀæzÉÃ±À d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) ¥ÀPÀëzÀ ¸ÀzÀ¸ÀågÁzÀ ²æÃªÀÄw ¨sÁUÀåªÀÄä.f PÉÆÃA UÀuÉÃ±ï.« DzÀ £Á£ÀÄ ¥ÀPÀë ¸ÀÆa¹zÀ C¨sÀåyðAiÀÄ ¥ÀgÀªÁV £Á£ÀÄ ªÀÄvÀ ZÀ¯Á¬Ä¸ÀÄvÉÛÃ£É.

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vÁªÀÅUÀ¼ÀÄ ¤ÃrgÀÄªÀ ¸ÀZÉÃvÀPÁzÉÃ±ÀzÀAvÉ £Á£ÀÄ £ÀqÉzÀÄPÉÆ¼ÀÄîvÉÛÃ£É. AiÀiÁªÀÅzÉÃ jÃwAiÀÄ G®èAWÀ£É ºÁUÀÆ ¤zÉÃð²¹zÀ jÃw ªÀÄvÀ ZÀ¯Á¬Ä¸ÀzÉ EgÀÄªÀÅzÀÄ CxÀªÁ ªÀÄvÀ ZÀ¯ÁªÀuÉ¬ÄAzÀ zÀÆgÀ G½AiÀÄÄªÀÅzÀÄ »ÃUÉ ªÀiÁrzÀ ¥ÀPÀëzÀ°è PÀ£ÁðlPÀ ¥ÀAZÁAiÀÄvï gÁeï (¥ÀPÁëAvÀgÀ ¤µÉÃzÀ) SÁ¬ÄzÉ C£ÀéAiÀÄ ¤ÃªÀÅ £À£Àß «gÀÄzÀÞ ¸ÀÆPÀÛ PÀæªÀÄ PÉÊUÉÆ¼Àî§ºÀÄzÉAzÀÄ M¦à F PÉ¼ÀUÉ ¸À» ªÀiÁqÀÄªÀ ªÀÄÆ®PÀ ¸ÀZÉÃvÀPÁzÉÃ±ÀzÀ ¥ÀæwAiÀÄ£ÀÄß ¥ÀqÉ¢gÀÄvÉÛÃ£É.

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PÀæªÀÄ ¸ÀASÉå	¥ÀlÖt ¥ÀAZÁ¬Äw ¸ÀzÀ¸ÀågÀÄ	¸À»
01	²æÃªÀÄw ¨sÁUÀåªÀÄä.f PÉÆÃA UÀuÉÃ±ï.«	*Sd/-*

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In terms of the whip, the petitioner ought to be present in the meeting hall on the date of election on 5-11-2020, but skipped the same on the ground that she was suffering from viral fever and was a suspected case of COVID-19; that no test with regard to COVID-19 was placed on record, as only medical certificate was handed over to the Competent Authority as justification

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for the absence. The relevant portion of the medical

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certificate reads as follows:-

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“This is to certify that Mrs. Bhagyamma W/o Ganesh is suffering from pneumonia and LBA of Viral Fever and is under my treatment on 3-11-2020, on OPD basis and advised rest for a week”

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The certificate is issued by one Renukaa Hospital which according to the petitioner is a reputed hospital. The narration in the medical certificate shows that the petitioner was suffering from viral fever and was under treatment of a doctor who had advised rest for a week. According to the medical certificate the petitioner remained indisposed from 3-11-2020 up to 10.11.2020 the date on which the medical certificate was issued. Elections were held on 5-11-2020 beginning with the submission of nomination papers and ending with declaration of result all of which on the same day i.e., on 5-11-2020. In the light of calendar of events being drawn up in the manner in which it is depicted, it is

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germane to test every one of the submissions made by

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the learned counsel for the petitioner.

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The first contention the learned counsel for the petitioner contended that there was no election worth the name conducted as there was only one candidate each for the posts of President and VicePresident and the whip that was issued for attendance where there was no election at all is redundant is unacceptable for the reason that elections began and ended on the same day i.e., 5-11-2020 in the presence of Members. It cannot be imagined how the petitioner would come to know that there would be no contest as only one candidate each for the offices of President and Vice-President are filing their nominations in justification of absence. If the petitioner had been present and contended as urged herein it would be different circumstance altogether. Staying outside and contending that there was no election worth the name

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as there was only one nominee each for the posts is a ruse or blind justification of an act of the petitioner which is admittedly in violation of the whip. Therefore this contention of the petitioner deserves to be rejected.

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The second contention is intertwined with

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the first urged and what is narrated hereinabove is, whether the President of District Unit of the Party could have issued the whip notwithstanding the fact that ‘B’ Form was issued by the National President of Janatha Dal (Secular). The disqualification of a Member is dealt with under Section 3 of the Act and the circumstances narrated therein. The provision that is germane for the subject lis is extracted for the purpose of quick reference:

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“3. Disqualification on the ground of

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defection - (1) Subject to the Provisions of Sections 3-A, 3-B and 4, a Councillor or a member, belonging to any political party,

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shall be disqualified for being such Councillor or member, -

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(a) xx xx xx xx

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(b) if he votes or abstains from voting in, or intentionally remains absent from any meeting of the Municipal Corporation, Muncipal Council, Town Panchayat, Zilla panchayat or Taluk Panchayat, contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf without obtaining the prior permission of such party, person or authority and such voting, abstention or absence has not been condoned by such political party, person or authority within fifteen days from the date of voting or such abstention or absence.”

¶131

In terms of the afore-extracted Section, a member belonging to any political party shall be disqualified for

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being such a member if he votes or abstains from voting or intentionally remains absent from any meeting of the Municipal corporation inter alia contrary to any direction issued by the political party to which they belong or any direction issued by any authority authorized by the political party on that behalf, without obtaining prior permission.

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The contention of the learned counsel if tested

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on the anvil of the aforesaid provision would become unacceptable for the reason that a clear direction was issued by the District President of the political party to which the petitioner belonged. It cannot be said that the District President had no authority to do so, more so, in the light of the fact that several delegations having been done the past, the nearest past even, have been issued by the District Presidents of such political parties. It would not be out of place to refer to several delegations of issuance of whip in the past or whip

¶136

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being issued by the District Presidents. A few of the whips issued in the past till the present, as produced by the learned counsel appearing for 6^th respondent, are

¶138

extracted herein for the purpose of quick reference:

¶139

Whip issued on 29.03.2012:

¶140

“ gÀªÀjUÉ

¶141

²æÃªÀÄw/²æÃ gÀAUÀªÀÄä ªÁvÀUÁ£ÀºÀ½î PÉëÃvÀæ vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄ, PÉÆgÀlUÉgÉ

¶142

ªÀiÁ£ÀågÉÃ,

¶143

PÉÆgÀlUÉgÉ vÁ®ÆèPÀÄ¥ÀAZÁ¬ÄÛ CzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉ «µÀAiÀÄªÁV ¢£ÁAPÀ:30.03.2012 gÀAzÀÄ ±ÀÄPÀæªÁgÀ ¨É½UÉÎ11.00 UÀAmÉUÉ PÉÆgÀlUÉgÉ vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄÛ ¸À¨sÁAUÀtzÀ°è ¸À¨sÉAiÀÄ£ÀÄß PÀgÉAiÀÄ¯ÁVzÀÄÝ, F ¸À¨sÉAiÀÄ°è d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) ¥ÀPÀëzÀ J¯Áè vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄUÀ¼ÀÄ PÀqÁØAiÀÄªÁV ºÁdgÁV, d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) ¥ÀPÀëzÀ C¨sÀåyðAiÀiÁzÀ ¹zÀÝUÀAUÀªÀÄä ¥ÀgÀªÁV vÀªÀÄäUÀ¼À ªÀÄvÀ ZÀ¯Á¬Ä¸À¨ÉÃPÉAzÀÄ F ¸ÀZÉÃvÀPÁzÉÃ±À(«Ã¥ï) ¤ÃqÀÄªÀ ªÀÄÆ®PÀ vÀªÀÄUÉ ¤zÉÃð±À£À ¤ÃqÀ¯ÁVzÉ.

¶144

¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ¢AzÀ, ¤ÃqÀ¯ÁVgÀÄªÀ F ¸ÀZÉÃvÀPÁzÉÃ±ÀªÀ£ÀÄß AiÀiÁªÀÅzÉÃ jÃwAiÀÄ°è G®èAWÀ£É ºÁUÀÆ ¤zÉÃð²¹zÀ jÃw ªÀÄvÀ ZÀ¯Á¬Ä¹zÉ EgÀÄªÀÅzÀÄ CxÀªÁ ªÀÄvÀ ZÀ¯ÁªÀuÉ¬ÄAzÀ zÀÆgÀ G½AiÀÄÄªÀÅzÀÄ, »ÃUÉ ªÀiÁrzÀ ¥ÀPÀëzÀ°è PÀ£ÁðlPÀ ¥ÀAZÁAiÀÄvï gÁeï (¥ÀPÁëAvÀgÀ ¤µÉÃzÀ) PÁ¬ÄzÉ C£ÀéAiÀÄ ¤ªÀÄä «gÀÄzÀÞ ¸ÀÆPÀÛ PÀæªÀÄ PÉÊUÉÆ¼Àî¯ÁUÀÄªÀÅzÉAzÀÄ F ªÀÄÆ®PÀ ¸ÀZÉÃvÀPÁzÉÃ±ÀªÀ£ÀÄß d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) ¥ÀPÀëzÀ ªÀw¬ÄAzÀ ¤zÉÃð²¸À¯ÁVzÉ.”

¶145

¶146

Whip issued to two different members with regard

¶147

to Tumkur Taluk Panchayat election for President on 08.07.2020:

¶148

¢£ÁAPÀ:08.07.2020

¶149

¸ÀZÉÃvÀ£À («¥ï)

¶150

¢£ÁAPÀ 09-07-2020£ÉÃ UÀÄgÀÄªÁgÀzÀAzÀÄ vÀÄªÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄwAiÀÄ CzsÀåPÀëgÀ ¸ÁÜ£ÀPÉÌ ²æÃ/²ÃªÀÄw.²ªÀPÀÄªÀiÁgÀ ¸Áé«Ä ºÉZï.J¸ï. EªÀgÀÄ ¸Àà¢üð¹zÀÄÝ, ¸ÀzÀj ZÀÄ£ÁªÀuÉAiÀÄ°è vÁªÀÅ G¥À¹ÜvÀjzÀÄÝ, EªÀgÀ ¥ÀgÀªÁV ªÀÄvÀ / PÉÊ JvÀÄÛªÀÅzÀgÀ ªÀÄÆ®PÀ ªÀÄvÀ ZÀ¯Á¬Ä¸ÀÄªÀAvÉ £ÀªÀÄä ¥ÀPÀëzÀ ZÀÄ£Á¬ÄvÀ ¸ÀzÀ¸ÀågÁzÀ vÀªÀÄUÉ F ªÀÄÆ®PÀ ¸ÀZÉÃvÀ£À («¥ï) ¤ÃqÀ¯ÁVzÉ.

¶151

¸À»/-

¶152

(n.Dgï.£ÁUÀgÁdÄ) PÁAiÀÄðzsÀåPÀëgÀÄ f¯Áè d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) vÀÄªÀÄPÀÆgÀÄ f¯Éè.

¶153

EªÀjUÉ, ¥Àæ¢Ã¥ï Dgï ©£ï gÀ« vÁ®ÆèPÀÄ ¥ÀAZÁ¬Äw ¸ÀzÀ¸ÀågÀÄ £ÁUÀªÀ°è PÉëÃvÀæ vÀÄªÀÄPÀÆgÀÄ.”

¶154

¢£ÁAPÀ:08.07.2020

¶155

¸ÀZÉÃvÀ£À («¥ï)

¶156

¢£ÁAPÀ 09-07-2020£ÉÃ UÀÄgÀÄªÁgÀzÀAzÀÄ vÀÄªÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄwAiÀÄ CzsÀåPÀëgÀ ¸ÁÜ£ÀPÉÌ ²æÃ/²ÃªÀÄw.²ªÀPÀÄªÀiÁgÀ ¸Áé«Ä

¶157

¶158

ºÉZï.J¸ï. EªÀgÀÄ ¸Àà¢üð¹zÀÄÝ, ¸ÀzÀj ZÀÄ£ÁªÀuÉAiÀÄ°è vÁªÀÅ G¥À¹ÜvÀjzÀÄÝ, EªÀgÀ ¥ÀgÀªÁV ªÀÄvÀ / PÉÊ JvÀÄÛªÀÅzÀgÀ ªÀÄÆ®PÀ ªÀÄvÀ ZÀ¯Á¬Ä¸ÀÄªÀAvÉ £ÀªÀÄä ¥ÀPÀëzÀ ZÀÄ£Á¬ÄvÀ ¸ÀzÀ¸ÀågÁzÀ vÀªÀÄUÉ F ªÀÄÆ®PÀ ¸ÀZÉÃvÀ£À («¥ï) ¤ÃqÀ¯ÁVzÉ.

¶159

¸À»/-

¶160

(n.Dgï.£ÁUÀgÁdÄ) PÁAiÀÄðzsÀåPÀëgÀÄ f¯Áè d£ÀvÁzÀ¼À (eÁvÁåwÃvÀ) vÀÄªÀÄPÀÆgÀÄ f¯Éè.

¶161

EªÀjUÉ,

¶162

£ÉÃvÁæªÀw W/O ¸ÀÄgÉÃ±À PÉ.J¸ï. vÁ.¥ÀA.¸ÀzÀ¸ÀågÀÄ PÉ¸ÀÆÛgÀÄ PÉëÃvÀæ vÀÄªÀÄPÀÆgÀÄ.”

¶163

Whip issued in the subject lis dated 27.10.2020:

¶164

“«µÀAiÀÄ: ¸ÀÜ½ÃAiÀÄ ¸ÀA¸ÉÜUÀ¼À CzsÀåPÀëgÀ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉAiÀÄ°è ¸ÀaÃvÀPÁzÉÃ±À («¥ï) eÁj ªÀiÁqÀÄªÀ §UÉÎ.

¶165

ªÉÄÃ®ÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢¹zÀAvÉ vÀÄªÀÄPÀÆgÀÄ f¯Éè, d£ÀvÁzÀ¼À (eÁvÀåwÃvÀ) ¥ÀPÀëzÀ f¯ÁèzsÀåPÀëgÁzÀ Dgï.¹.CAfÃ£À¥Àà £ÀªÀjUÉ F ¥ÀvÀæzÀ ªÀÄÆ®PÀ w½AiÀÄ ¥Àr¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ, vÀÄªÀÄPÀÆgÀÄ f¯Éè, PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁAiÀÄwAiÀÄ ZÀÄ£ÁªÀuÉAiÀÄ°è £ÀªÀÄä ¥ÀPÀëzÀªÀgÉÃ ºÉZÀÄÑ C¨sÀåyðUÀ¼ÀÄ UÉ®ªÀÅ ¸Á¢¹zÀÄÝ ªÀÄÄAzÉ §gÀÄªÀ PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬ÄÛAiÀÄ CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ DAiÉÄÌ ªÀiÁqÀÄªÀ «ZÁgÀzÀ°è £ÀªÀÄä ¥ÀPÀë¢AzÀ ZÀÄ£Á¬ÄvÀgÁzÀ ¥ÀlÖt

¶166

¶167

¥ÀAZÁ¬ÄwAiÀÄ ¸ÀzÀ¸ÀågÀÄUÀ½UÉ F ªÀÄÆ®PÀ w½AiÀÄ ¥Àr¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ ªÀÄÄA¢£À ¢£ÀUÀ¼À°è PÉÆgÀlUÉgÉ ¥ÀlÖt ¥ÀAZÁ¬ÄÛAiÀÄ CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉAiÀÄ ¢£À ¸À¨sÉUÉ ºÁdgÁV CzsÀåPÀëgÀÄ ªÀÄvÀÄÛ G¥ÁzsÀåPÀëgÀ DAiÉÄÌUÉ £ÀªÀÄä ¥ÀPÀëzÀªÀjUÉ ªÀÄvÀ ºÁPÀ¨ÉÃPÉAzÀÄ w½¹ ºÁUÀÆ ¥ÀPÀëzÀ ªÀZÀð¹ìUÉ zÀPÉÌ ¨ÁgÀzÀ ºÁUÉ ªÀÄvÀÄÛ ¥ÀPÀë «gÉÆÃ¢ ZÀlÄªÀnPÉ £ÉqÉ¸ÀÄªÀªÀgÀ «gÀÄzÀÝ ¸ÀÆPÀÛ PÀæªÀÄ PÉÊUÉÆ¼ÀÄîªÀ C¢üPÁgÀ ªÀÄvÀÄÛ £ÀªÀÄä ¥ÀPÀë¢AzÀ DAiÉÄÌAiÀiÁzÀ J¯Áè ¸ÀzÀ¸ÀåjUÀÆ ¥ÀPÀëzÀ ¥ÀgÀªÁV ¸ÀZÉÃvÀPÁzÉÃ±À («¥ï) eÁj ªÀiÁqÀÄªÀ ¸ÀA¥ÀÆtð C¢üPÁgÀ vÀÄªÀÄPÀÆgÀÄ f¯ÁèzsÀåPÀëgÁzÀ ¤ªÀÄUÉ ¤ÃrgÀÄvÉÛÃ£É.”

¶168

(emphasis added)

¶169

Therefore, in the light of the provision of the Act and the afore-extracted whip issued from time to time, it cannot be contended by the petitioner that whip issued by the President of the Tumkur District Unit of the Janatha Dal (Secular) was without authority of law. The said contention deserves to be rejected.

¶170

The third contention of the petitioner is with

¶171

regard to violation of statute insofar as it concerns Section 4 of the Act. Section 4 of the Act reads as

¶172

follows:-

¶173

¶174

“4. Decision on the question as to disqualification on the ground of defection .- (1) A complaint that a member or a councillor has become subject to the disqualification under Section 3 may be made by a member, councillor or a political party to the Chief Executive Officer of the concerned local authority,-

¶175

(a) in a case falling under clause (a) of sub-section (1) after the member or the councillor gives up the membership of the political party;

¶176

(b) in a case falling under clause (b) of sub-section (1), after the expiry of fifteen days specified therein;

¶177

(c) in a case falling under sub-section (2), after he joins the political party ; and

¶178

(2) Where a complaint under sub-

¶179

section (1) is received by the Chief Executive Officer of the concerned local authority, he shall, within twenty-four hours from the receipt of such complaint, refer the same for decision to,-

¶180

(i) in the case of Zilla Panchayat, to the State Election Commissioner;

¶181

(ii) in the case of Municipal Corporation, to the Divisional Commissioner;

¶182

¶183

(iii) in the case of a City or Town Municipal Council or Town Panchayat to the Deputy Commissioner;

¶184

(iv) in the case of a Taluk Panchayat, to the State Election Commissioner

¶185

who shall decide the question within sixty days after the receipt by him of the reference and his decision shall be final.

¶186

Explanation .- In this section,- (1) "Chief Executive Officer" means,-

¶187

(a) in the case of Zilla Panchayat, the Chief Executive Officer of the Zilla Panchayat;

¶188

(b) in the case of a Taluk Panchayat, the Executive Officer of the Taluk Panchayat;

¶189

(c) in the case of a Municipal Corporation, the Commissioner;

¶190

(d) in the case of a City Municipal Council, the Municipal Commissioner,

¶191

(e) in the case of a Town Municipal Council, the Chief Officer;

¶192

(f) in the case of a Town Panchayat, the Chief Officer;

¶193

¶194

(2) "Local Authority" means the Zilla Panchayat, Taluk Panchayat, Municipal Corporation, City or Town Municipal Council or Town Pancayat.

¶195

(3) "State Election Commissioner" means the State Election Commissioner appointed under Section 308 of the Karnataka Panchayat Raj Act, 1993.”

¶196

(emphasis supplied)

¶197

Section 4(2) of the Act mandates that the complaint that is registered is to be transmitted to the Competent Authority within 24 hours of its receipt and that proceedings shall be concluded within 60 days from its commencement. It is these provisions that the learned counsel for the petitioner seeks to rely on to contend that proceedings are vitiated on account of violation of the mandate of the aforesaid provisions.

¶198

Insofar as transmission of the complaint

¶199

registered to the Competent Authority within 24 hours is concerned, the provision though reads it to be

¶200

¶201

mandatory, this Court interpreting the very provision has held it to be directory as there is no penal consequence that is depicted under the Act for violation of the said provision, in the case of DHARMAPPA SABANNA MADAR v. CHIEF SECRETARY⁸ , wherein

¶202

this Court held as follows:-

¶203

“6. The learned Counsel for the petitioners contended that the impugned order is vitiated for non-compliance with the requirement of Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act (in short the ‘Act’) in as much as the Secretary of the Mandal Panchayat should have referred the complaint to the Chief Secretary, Zilla Parishat within 24 hours from the receipt of such a complaint for his decision and further the Chief Secretary of the Zilla Parishat should have decided the question within seven days after the receipt of the same by him. The contention is that there is

¶204

8 ILR 1990 KAR 1637

¶205

¶206

non-compliance with these requirements of law.

¶207

11. The learned Government Pleader appearing for the State submitted that though Section 4 of the Act contemplates that the complaint should be communicated by the Secretary, Mandal Panchayat, within 24 hours of the receipt of the complaint by the Chief Secretary, Zilla Parishat, the time limit of 24 hours is only directory and not mandatory. The learned Government Pleader also submitted that the time limit of seven days provided by Section 4 within which time decision has to be rendered on the question referred to it, is equally directory and not mandatory. The further contention is that it is not shown how the petitioners are affected as a result of late or belated reference of the complaint by the Secretary of the Mandal Panchayat to the Chief Secretary of the Zilla Parishat and also on account of disposal of reference a short time beyond seven days. It would be necessary to reproduce Section 3 of the Act:

¶208

¶209

“3. Disqualification on the ground

¶210

of defection:

¶211

(1) Subject to the provisions of Section 4, a Councillor or a Member, belonging to any political party, shall be disqualified for being such Councillor or member-

¶212

(a) If he has voluntarily given up his membership of such political party; or

¶213

(b) If he votes or abstains from voting in any meeting if the Municipal Corporation, Municipal Council, Zilla Parishad or Mandal Panchayat contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen

¶214

¶215

days from the date of voting or such abstention.

¶216

Provided that no Councillor or Member shall be so disqualified if the number of Councillors or Members so voting or abstaining from voting constitutes not less than one half of the total number of Councillors or Members belonging to the political party in Zilla Parishad, Mandal Panchayat, Municipal Corporation or Municipal Council, as the case may be.”

¶217

Thus the member of Mandal Panchayat would suffer disqualification under subsection 1(b) of Section 3 if the member votes or abstains from voting in any meeting of the Mandal Panchayat in violation of any direction issued by the political party to which he belongs without obtaining prior permission of such political party provided such voting or abstention has not been condoned by such political party within fifteen days from the date of voting or such abstention. There was

¶218

¶219

no condonation of the voting or abstention in violation of the party whip is not in dispute. That the petitioners belong to Janata Party and they voted against the resolution whereas nine other members of the same party voted in favour of the resolution also is not in dispute. It is not the case of the petitioners that they do not belong to Janata Party. Their case is that they were not aware of the direction issued by the party which I have already rejected on the basis of material on record. Therefore, the question to be considered is whether the petitioners are liable to disqualification. It is necessary to refer to the proviso to Section 3(b) of the Act. According to the proviso, no member shall be disqualified if the number of members so voting or abstaining from voting constitutes not less than one half of the total number of members belonging to the political party in the Mandal Panchayat. The total number of members of the Janata Party in the instant case is 11 and the number of members who have defied the party direction are two and nine others have voted in favour of the

¶220

¶221

resolution. In these circumstances the proviso to sub-section (b) of Section 3 will be of no assistance to the petitioners. Section 4 of the Act reads thus:

¶222

“Decision on the question as to disqualification on the ground of defection-

¶223

(1) Where a complaint under subsection (1) is received by the Chief Executive Officer of the concerned local authority, he shall, within twenty four hours from the receipt of such complaint, refer the same for decision to-

¶224

(i) in the case of Zilla Parishad, to the Chief Secretary to Government;

¶225

(ii) in the case of Municipal Corporation, to the Divisional Commissioner;

¶226

(iii) in the case of a City or Town Municipal Council to the Deputy Commissioner;

¶227

(iv) in the case of a Mandal Panchayat, to the Chief Secretary to the Zilla Parishad;

¶228

¶229

who shall decide the question within 7 days after the receipt by him of the reference and his decision shall be final.

¶230

It is true that the complaint of defection was lodged by the party on 14-1-1988 with the Secretary of the Mandal Panchayat and thereafter the said Secretary referred the complaint for decision to the Chief Secretary of the Zilla Parishad vide letter dated 18-11988. The time of four days has elapsed between the date of receipt of the complaint from the Secretary Mandal Panchayat and then reference of the complaint to the Chief Secretary of the Zilla Parishad. According to Section 4 of the Act, reference shall be made within twenty-four hours from the receipt of such a complaint. The question whether or not the provision is mandatory or directory has to be considered in the context of impact of non-observation of the time limit on the proceedings as well as on the petitioners. The learned Counsel for the petitioners was not able to explain as to how the petitioners are

¶231

¶232

affected just because the complaint was not referred to the Competent Authority within twenty-four hours but after a lapse of about 4 days and also as to how the proceedings are affected on account of this delay. The intention that could be gathered from the word ‘shall’ in the context is that it would be preferable to refer the complaint for decision within twenty-four hours and the meaning of the word ‘shall’ has to be construed as the meaning of the word ‘may’. It cannot be said that by not submitting the reference for decision within twenty-four hours from the receipt of the complaint the purpose of law is defeated in the absence of any adverse consequences either to the petitioners or the proceedings in respect of which the decision is to be taken. It may also be mentioned that the provision of law in Section 4 of the Act contemplating a time limit cannot be applied too harshly or rigidly, especially in the context of the fact that the law is concerned with the administration of the

¶233

¶234

affairs of a village republic. It would be unnatural and also unreasonable to presume that the intention of law was to obliterate a complaint if reference was not made within twenty-four hours from the receipt of the complaint. Similarly, in regard to the word ‘shall’ used in the sentence “who shall decide the question within seven days after the receipt by him of the reference and his decision shall be final,” has to be held as directory and not mandatory. The intention of this proviso appears to be that as far as possible the decision shall be rendered within seven days after the receipt of the reference and it cannot be said that the decision became null and void if it was not rendered within 7 days from the date of receipt of the complaint. What adverse consequences would follow if a decision is not rendered within a time limit of 7 days is not provided in the statute. In these circumstances, it is not possible to attach too much importance to the word ‘shall’ in the sense that it is

¶235

¶236

a statutory dictate and not a statutory direction. Locking from any angle after a careful consideration of these provisions of law and the non-existence of adverse consequences resulting from relaxation of the time limit set down under the said provisions, I am of the opinion that the word ‘shall’ used in Section 4 has to be construed as ‘may’, as flexibility would have it.”

¶237

(emphasis supplied)

¶238

This judgment rendered by the learned single Judge was carried in appeal by the writ petitioner, which also came to be dismissed by the Division Bench by its judgment dated 19-09-1991 in Writ Appeal Nos.712 and 713 of 1990 reported under the very same title in ILR 1991 KAR 3723, by holding as follows:-

¶239

“8. We have given our careful consideration to the above arguments. We are clearly of the view that neither of them could

¶240

¶241

be held to be tenable. Our reasons are as under:

¶242

On a perusal of the records produced by the learned Government Advocate, it is clear that on 24-12-1987 a party whip was issued calling upon the Members belonging to Janatha Party not to vote against item 10 of the agenda. This party whip was sent by Certificate of Posting and the names of all the Members to whom Certificate of Posting was sent is found in the record. Therefore, it does not lie in the mouth of the appellants to say that they did not receive them by post. The presumption under Section 114 of the Indian Evidence Act could legitimately be invoked as is done by the learned Judge.

¶243

We may also refer to the Decision in Mrs. Achamma Thomas v. E.R. Fairman [AIR 1970 Mysore 77.] wherein it has been held thus:

¶244

“(C) Evidence Act (1872), Section 114 - Notice of termination of tenancy - Notice sent under

¶245

¶246

certificate of posting - Presumption arises that the notice has been duly delivered to addressee - [Transfer of Property Act (1882), Section 106] - [Mysore General Clauses Act (3 of 1899), Section 27] - AIR 1968 Cal 49. Rel. on.

¶247

xxxxxxxxx

¶248

Quite apart from what I have stated with regard to the service of registered notice or affixation of the notice on a conspicuous part of the premises, it is enough to hold that in this case, there has been due service of notice by virtue of the fact that the notice has been sent by post under “certificate of posting” and the presumption arises under Section 114(f) of the Indian Evidence Act that the letter has been duly delivered to the addressee as the letter has been addressed to the residential address of the respondent tenant.”

¶249

¶250

Then the next question would be, whether the failure to hear by the Chief Secretary would invalidate his order? Certainly, the Courts have repeatedly held that the observance of principles of natural justice is not a mere formality and ritual, but it must be for a useful purpose. Now, what is it the appellants could have done if they had been heard by the Chief Secretary before the final order on 27-1-1988? The facts are admitted that there was a party whip, that the appellants did vote against the resolution in defiance of the party whip. If that is the admitted fact where is the need for hearing at all. We do not consider that principles of natural justice must be applied in vacuum. Therefore, we not think that there is any scope for the application of principles laid down by the learned Judge in (1988) 23 Reports (Karnataka) 492 [(1988) 23 Reports (Karnataka) 492.] . In that case it also requires to be noticed, that there were clear denial of voting against. Therefore it became a dominant issue. That is not so here.

¶251

¶252

9. With this, we pass on to the scope of sub-section (2) of Section 4 of the Act. We will do well to extract the particular sub-section:

¶253

“(2) Where a complaint under subsection (1) is received by the Chief Executive Officer of the concerned local authority, he shall, within twenty-four hours from the receipt of such complaint, refer the same for decision to-

¶254

(i) in the case of Zilla Parishad, to the Chief Secretary to Government;

¶255

(ii) in the case of Municipal Corporation, to the Divisional Commissioner;

¶256

(iii) in the case of a City or Town Municipal Council, to the Deputy Commissioner;

¶257

(iv) in the case of a Mandal Panchayat, to the Chief Secretary of the Zilla Parishad;

¶258

He shall decide the question within seven days after the receipt by him of the

¶259

¶260

reference and his decision shall be final.”

¶261

No doubt, in two places, the word ‘shall’ is used. It cannot be denied that ‘shall’ normally should be construed as mandatory. But what requires to be carefully observed is the Act nowhere prescribes the consequence of not following the procedure. In other words, where the Legislature has thought fit not to penalise the non-observance of either referring the complaint within 24 hours by the Chief Executive Officer to the Chief Secretary or the Chief Secretary passing the order within 7 days after the receipt of the said reference, we should think it cannot be regarded as mandatory. In other words, the Legislature was anxious to see that the action is taken in a case of a complaint on the ground of defiance with utmost expedition. To our mind it means emphasising the obligation on the statutory authorities to determine the matter speedily. Therefore, it cannot,

¶262

¶263

straightaway lead to the conclusion that because there is violation of sub-section (2) of Section 4 of the Act, the order passed by the Chief Secretary is rendered void. The Court may well conceive of such a situation where a Chief Secretary is otherwise pre-occupied on an important work relating to Zilla Parishad - for example flood relief and if there is a delay of one day, does it mean that the order rendered by him is ab initio void! We feel we should not interpret so unless of course the Statute itself has prescribed the consequence to follow in the event of non-observation.

¶264

10. It is not denied nor can it be denied that the Act nowhere prescribed a consequence, penalty or otherwise, failure to follow this. Therefore, it stands to reason that it must be construed as directory. We may refer to the leading Decision of the Supreme Court in State of U.P. v. Manbodhan Lal [AIR 1957 SC 912.] . That related to the interpretation of

¶265

¶266

Article 320(3)(c). It is enough if we extract Head-notes (b) & (c) and Para-11 of the Judgment:

¶267

“(b) Constitution of India, Article 320(3)(c) - “Memorials or petitions” (Words and phrases)

¶268

According to the strict construction of the words of Article 320(3)(c), an application for review would be covered by the words “Memories or petitions”.

¶269

(c) Interpretation of Statutes Statute whether mandatory or directory - Use of “Shall” and “may” [(Civil P.C. (1908) Pre] -(Words and Phrases) Constitution of India, pre].

¶270

The use of the word “shall” in a statute, does not necessarily taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word “may” has

¶271

¶272

been used, the statute is only permissible or directory in the sense that noncompliance with those provisions will not render the proceeding invalid (1917) AC 170 : AIR 1945 FC 67 rel. on.

¶273

(11) An examination of the terms of Article 320 shows that the word “shall” appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Article 320(3)(c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory.

¶274

If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these subclauses in Clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter.

¶275

This result could not have been contemplated by the makers of the

¶276

¶277

Constitution. Hence, the use of the word “shall” in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid.

¶278

On the other hand, it is not always correct to say that where the word “May” has been used, the statute is only permissible or directory in the sense that non-compliance with these provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on ‘Statutory Construction’ - Article 261 at page 516 is pertinent:

¶279

“The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and the intention of the Legislature must

¶280

¶281

govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other…”

¶282

(emphasis supplied)

¶283

In view of judicial interpretation of the very provision, the learned counsel appearing for the petitioner seeks to take support to contend that violation of the statute would result in vitiation of the impugned order is unavailable, unacceptable and is to be rejected.

¶284

The fourth contention of the learned counsel

¶285

appearing for the petitioner is with regard to violation of the mandate of completion of proceedings within 60 days from its initiation. It is not in dispute that the entire globe is engulfed by the Pandemic COVID-19 and cannot be said that the Deputy Commissioner of Tumkuru was free from such a problem. Original records that are produced would indicate that

¶286

¶287

proceedings commenced on 21.04.2021 and ended with

¶288

the passing of the impugned order on 26-07-2021. The dates of proceedings as found in the original records are

¶289

as follows:

¶290

26-05-2021	PÉÆÃ«qï- 19 »£Àß¯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß ¢£ÁAPÀ 09-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ. DzÉÃ±ÀzÀ ªÉÄÃgÉUÉ
09-06-2021	PÉÆÃ«qï- 19 »£Àß¯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß ¢£ÁAPÀ 16-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ. DzÉÃ±ÀzÀ ªÉÄÃgÉUÉ
16-06-2021	PÉÆÃ«qï- 19 »£Àß¯ÉAiÀÄ°è ¥ÀæPÀgÀtªÀ£ÀÄß ¢£ÁAPÀ 30-06-2021PÉÌ ªÀÄÄAzÀÆrzÉ. DzÉÃ±ÀzÀ ªÉÄÃgÉUÉ
30-06-2021	¥Àæ.PÀÆ.Pet¥ÀgÀ °TvÀ ªÁzÀ ¸À°è¹zÀgÀÆ JzÀÄgÀÄzÁgÀgÀ ¥ÀgÀ £ÁåAiÀÄªÁ¢UÀ¼ÀÄ °TvÀ vÀPÀgÁgÀÄ ¸À°è¹zÀgÀÄ.Pet¥ÀgÀ zÁR¯Áw ¸À°è¹zÀgÀÆ G.¥À.¥ÀgÀ £ÁåAiÀÄªÁ¢UÀ¼ÀÄ _Short time_PÉÃ½zÀÝjAzÀ_Act Provi_w½¹ £ÀAvÀgÀ M¦à¹. 14-07-2021PÉÌ CAwªÀÄ «ZÁgÀuÉUÉ ªÀÄÄAzÀÆrvÀÄ.
14-07-2021	¦ÃoÁ¢üPÁjUÀ¼ÀÄ C£Àå vÀÄvÀÄð PÁAiÀÄðzÀ ¤«ÄvÀÛ ¥ÀæPÀgÀtªÀ£ÀÄß ¢£ÁAPÀ 16-07-2021PÉÌ ªÀÄÄAzÀÆrzÉ.
16-07-2021	¥Àæ.PÀÆ. G.¥À. ¥ÀgÀ £ÁåAiÀÄªÁ¢UÀ¼ÀÄ ºÁdgÀÄ ªÁzÀ_–_«ªÁzÀ PÉÃ¼À¯Á¬ÄvÀÄ. ¥ÀæPÀgÀtzÀ°è ¸ÀªÀÄAiÀÄ ¤ÃrgÀÄªÀÅzÀjAzÀ ¥ÀæPÀgÀtªÀ£ÀÄß DzÉÃ±ÀPÉÌEqÀ¯Á¬ÄvÀÄ. JzÀÄgÀÄzÁgÀgÀ ¥ÀgÀ

¶291

¶292

	£ÁåAiÀÄªÁ¢UÀ¼ÀÄ Writt	en	Arg	ument
	¸À°è¹zÀgÉ_Serving othe_	rsi	de.
26-07-2021	¥Àæ.PÀÆ. JzÀÄgÀÄzÁgÀgÁzÀ f.J£ï. PÉÆÃA. UÀuÉÃ±ï	²æÃ ¹.	ªÀÄw 9£ÉÃ	¨sÁUÀåªÀÄä ªÁqïð
	¸ÀzÀ¸ÀågÀÄ PÉÆgÀlUÉgÉ	¥À.¸	ÀA.	EªÀgÀ£ÀÄß
	PÉÆgÀlUÉgÉ C£ÀºÀðUÉÆ½¹ DzÉÃ²¹zÉ.	¥À.¸À	A.¸ÀzÀ¸	ÀågÁVgÀ®Ä

¶293

In terms of the aforesaid dates of proceedings, on three days i.e., on 26-05-2021, 09-06-2021 and 16-06-2021 the proceedings were adjourned due to surge in cases of COVID-19 in the District and the Deputy Commissioner being in-charge of the activities concerning testing and controlling of COVID-19 cases was completely engaged in such activities. The statutory limitation obtained in several enactments itself was extended by a general order of the Hon’ble Apex Court and this Court, on several occasions, owing to Pandemic of COVID-19. Therefore, the mandate with regard to limitation cannot be pressed into service, in the case at hand, as statutory exception with regard to limitation was prevalent even where enactments mandated such limitation. Therefore,

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the said contention also deserves to be rejected in the peculiar facts and timing of the case.

¶296

The fifth contention is with regard to lack of opportunity to the petitioner at the hands of the Competent Authority in the proceedings. Again on a perusal of the proceedings it becomes clear that the petitioner did not seek to lead evidence or contend that an opportunity of proving her case otherwise should be granted. What could be gathered from the proceedings is that the petitioner herself opted to file written arguments. Both the parties to the case before the Deputy Commissioner filed their respective written arguments and based on such consideration, the Deputy Commissioner decided the issue. Even in the written arguments filed, there was no mention about any opportunity to be granted to the petitioner to lead evidence. Adequate opportunity is seen to have been granted in the proceedings. Even if it is construed that

¶297

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these proceedings are quasi judicial in nature, the Rules of Procedure having not been drawn up, compliance with principles of natural justice and grant of reasonable opportunity is the procedure that is to be followed. If the contention of the learned counsel for the petitioner is to be accepted, it would amount to expanding natural justice to an unlimited extent, as natural justice cannot be applied in isolation by Courts of law keeping the facts in cold storage. In the facts of this case, I find that the petitioner had adequate opportunity to defend herself before the Deputy Commissioner. Therefore, this contention of the learned counsel for the petitioner also deserves to be rejected.

¶299

It is now germane to notice the contention of the 6^th respondent who has produced certain photographs of the husband of the petitioner being in active acquaintance with the leaders of opposite party viz., Indian National Congress. The learned counsel for

¶300

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the petitioner submits that the husband of the petitioner is an independent entity and it is not a matter to which party he belongs to as long as the petitioner has not violated any rule or norm of the party. It is now becomes apposite to consider the submission of the learned counsel for the petitioner in the light of the aforesaid submission.

¶302

The learned counsel for the petitioner submits that though the petitioner was unwell and was on a treatment did visit the spot, sat outside the meeting hall where the elections were to be held on 5-11-2020, did not go into the meeting hall and after coming to know the result left the place. If the contention of the petitioner is tested on the sickness that the petitioner takes recourse to, it gets diluted, as even according to the learned counsel for the petitioner, the petitioner did go to the spot of the meeting but did not get in.

¶303

¶304

Though the husband of the petitioner is free to choose his party, the link in the chain of events that are narrated in the course of this order and the sickness of the petitioner, would lead to an unmistakable conclusion that it was a deliberate act on the part of the petitioner to have remained out and violated the whip. It hardly matters in the facts of this case whether there was any contestant for the post of President or VicePresident and only contestants had been elected unanimously. It is the act of the petitioner sitting on the fence dilly-dallying with regard to the entry or remaining outside that deserves acceptance with regard to the contention of the learned counsel appearing for the 6^th respondent to know the intention of the husband of the petitioner to be with the Indian National Congress.

¶305

It is apposite to refer to the judgment of this

¶306

Court in the case of H.S.DEVRAJ (supra) wherein a learned single Judge of this Court has held as follows:

¶307

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“That brings me to the alternative submission of Sri Subbaiah. It was contended that since the selection and nomination of the candidates had not taken place in the meeting held on 12th of December 1998 and 14th of December 1998, no whip could have been issued to support their candidature. There is, in my opinion, no merit in that submission either. The decision in the meeting held on 12th of December 1998 was two fold. Firstly to leave the nomination of the candidates to Sri Siddaramaiah and secondly to call the members of the Zilla Panchayat belonging to the party on 14th of December 1998 to receive the party directive. It is not the case of the petitioners that the direction issued on 14th of December 1998 under the signatures of the District party President did not identify the party nominees in whose favour the Zilla Panchayat members were asked to vote. A whip from the party or the person authorised is sufficient to establish that the person in whose favour the same is issued has been selected by the party as its candidate. That being so, a member of the

¶309

¶310

Panchayat belonging to any such party would have no option, but to abide by the directive issued to him. He cannot defy the directive on the ground that the person nominated as the official candidate did not either deserve to be nominated or had not been validly selected. The very purpose of issuing a whip to the members of the Panchayat, Municipal Council or Corporation would be defeated if the efficacy of any such directive were to depend upon the person receiving the whip agreeing with the nomination of the candidate in whose favour the same is issued. As to how a candidate is nominated by the party to contest an election for any Office is an intra party matter. Different parties may have different methods and mechanisms for selection and nomination of their candidates. Any such nomination or selection process is not regulated by the Statute. What is crucial is whether the election process has eventually culminated in the issue of a whip by or under the authority of the party concerned. If it has, all those to whom the whip is issued can defy the

¶311

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same only on the peril of loosing their membership. The fact that Sri Siddaramaiah did not made any formal declaration of the official candidates is therefore wholly inconsequential so long as the party had authorised the District President to issue the whip and the person authorised had identified the candidates, in whose favour the whip was issued. It is in that view unnecessary to go into the question whether the proceedings said to have been recorded on 12th of December 1998 present a faithful account of whatever transpired in that meeting. The issue of the whip, its service upon the petitioners and the violation thereof by them having been established, the Election Commissioner was justified in directing their disqualification. I see no error of law or jurisdiction or other procedural impropriety in the order made by the Election Commissioner to warrant interference.

¶313

(emphasis supplied)

¶314

This Court in the aforesaid judgment has clearly held that if a situation is created by all of those against

¶315

¶316

whom whip is issued, defy the same, it would be at their peril. This Court, later, in the case of IREPPA THIRAKAPPA SHOURADHA (supra) has held as follows:

¶317

“2. The impugned order is attacked on the ground that there is no specific direction in the whip issued as required under Section 3(1)(b) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987. Consequently, there is no whip in the eye of law. In the absence of a valid whip, the impugned order is bad in law. The decisions in Viswanath Kappathanavar v. Channu Patil [2000 (3) Kar. L.J. 56 : ILR 2000 KAR 1646 : AIR 2000 Kant. 247.] and Shobha v. State Election

¶318

Commission [2003 (3) KCCR Sh. N. 205.] , are pressed into service.

¶319

3. The ground of attack is wholly untenable. The whip clearly states “I do hereby issue this whip of no confidence motion of Sri R.G. Sindhanur, our party nominee for the President/Vice-President, T.M.C., Savanur Taluk

¶320

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Panchayat/CMC/Town Zilla Savanur in the forthcoming Elections.

¶322

Zilla Panchayat,

¶323

4. If you go against the whip issued by the prescribed authority or if you avoid to receive the whip, action will be taken against you under the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act of 1987 and subsequent Amendments in 1995”. In view of this clear whip, it cannot be said that there is no specific direction in the whip. Therefore, the decisions pressed into service will not support the case of the petitioners and the ground urged is rejected.

¶324

5. The case sought to be made out before the 2nd respondent was that the petitioners do not know English. The 2nd respondent held that no evidence or proof is produced in this regard. But, this Court cannot believe or accept that petitioners do not know English. The reason is, they have signed the Vakalathnama in English. Even the Affidavit verifying the writ petitions is signed in English by the 2nd petitioner. Even

¶325

¶326

assuming that petitioners do not know English, being elected members of the Town Municipal Council, they cannot plead such innocence about the language. When a person receives a document in a language not known to him, certainly he will ascertain and know the contents of the document from a person knowing the language contained in the document. Therefore, pleading such unwanted or technical defects will not come to the rescue of the petitioners.

¶327

6. Since the petitioners have disobeyed the whip, rightly the 2nd respondent has disqualified their membership. Hence, the petitioners cannot have any grievance. They have to blame themselves for their conduct for having not honoured the whip issued by the President of the party to which they belong to.

¶328

7. The first respondent after giving reasonable opportunity to the petitioners and perusing the undisputed material evidence placed on record has recorded the finding of fact holding that the petitioners have

¶329

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disobeyed the whip after rightly rejecting their plea, which finding of fact cannot be annulled by this Court in exercise of its power, as this Court is accepting the same as the same is based on material facts and evidence on record. For the foregoing reasons the legal contentions urged by the learned Senior Counsel with reference to the cases referred to supra relied upon by him are wholly untenable in law and they do not render any assistance to the case of the petitioners, hence they are misplaced and cannot be accepted by this Court.

¶331

In the light of the judgments of this Court, quoted hereinabove, it would lead to an inescapable conclusion that the petitioner having violated the whip has exercised such discretion at her peril.

¶332

Insofar as the judgment relied on by the learned counsel appearing for the petitioner in the case of SMT.KITTUR YASMIN RIYAZ (supra) , is distinguishable without much ado. The facts obtaining

¶333

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in the case of SMT.KITTUR YASMIN RIYAZ (supra) was that the Court was considering a complaint filed by an individual and did hold that the complaint at the hands of the individual was not maintainable and any order passed on a complaint that was not maintainable was void. In the case at hand, the complaint is by the 6^th respondent who is the District President of the political party to which the petitioner belongs. Therefore, the said judgment is inapplicable to the facts of the case.

¶335

Insofar as the judgment in the case of RAVI S.NAIK (supra) , the learned counsel places reliance on this judgment to buttress his submission with regard to violation of principles of natural justice. This again, in my considered view, is inapplicable to the facts of the case at hand for the reason as assigned while answering the fifth contention of the petitioner.

¶336

Insofar as it concerns the judgment in the case of SADASHIV H.PATIL ( supra ) the issue before the Apex

¶337

¶338

Court was whether the resolution could be equated to a whip as there was no resolution of the Aghadi authorizing the signatories of the whip to issue the whip. The case at hand is not the one where the whip was issued pursuant to any resolution. The whip is issued by the District President of a political party. Therefore, the judgments relied on by the learned counsel appearing for the petitioner are all inapplicable to the peculiar facts of the case at hand.

¶339

Therefore, for the aforesaid reasons, it can safely be concluded that the 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 the Act, it is held to be unavailable on the ground of prevailing circumstances of COVID-19 and the reasons indicated hereinbefore

¶340

¶341

and the plea with regard to violation of principles of natural justice also deserves to be rejected on the plain perusal of written arguments, the petition and the original records maintained in the case at hand.

¶342

In the result, the writ petition lacks merit and is dismissed.

¶343

Sd/JUDGE

¶344

bkp CT:MJ

Bhagyamma G N v. the Government of Karnataka

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Bhagyamma G N v. the Government of Karnataka

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