Smt Bhagyamma G N Vs the Government of Karnataka

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NC: 2025:KHC:5993-DB W.A. No.1097/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF FEBRUARY, 2025 PRESENT

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THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT APPEAL NO.1097/2021 (LB)

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BETWEEN:

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SMT. BHAGYAMMA G.N. W/O GANESH AGED ABOUT 37 YEARS R/AT. RAMANNAJJANA BEEDHI WARD NO.9, KORATAGERE TOWN 572129 TUMAKURU DISTRICT.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA (BY SRI. KAMARAJU, ADV.,)

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…APPELLANT

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AND:

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THE GOVERNMENT OF KARNATAKA REP. BY ITS SECRETARY DEPT OF MUNICIPAL ADMINISTARATION DR. AMBEDKAR VEEDHI BANGALORE 560001.

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THE DEPUTY COMMISSIONER TUMKUR DIST TUMKURU 571202.

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THE CHIEF OFFICER KORATAGERE TOWN PANCHAYATH KORATAGERE 572129 TUMKURU DIST.

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THE TAHSILDAR / RETURNING OFFICER THE TOWN PANCHAYATH KORATAGERE 572129 TUMKURU DIST.

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THE TOWN PANCHAYATH KORATAGERE TOWN KORATAGERE 572129 TUMKURU DIST.

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SRI. ANJINAPPA R.C. PRESIDENT TUMAKURU DISTRICT JANATHA DAL PRESIDENT ASHOKA ROAD TUMAKURU 571202.

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SMT. MANJULA W/O SATHYANARAYANA THE PRESIDENT KORATAGERE TOWN PANCHAYATH KORATAGERE 572101.

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SMT. K.V. BHARATHI W/O SIDDAMALLPPA VICE PRESIDENT KORATAGERE TOWN PANCHAYATH KORATAGERE TOWN 572101 TUMKURU DIST.

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…RESPONDENTS

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(BY SRI. C.H. DEVARAJ, GOVT., ADV., FOR R1, R2 & R4 SRI. A. NAGARAJAPPA, ADV., FOR R3 & R5 SRI. SHAILESH G. SHANKAR, ADV., FOR R6 (ABSENT) R7 & R8 SERVED AND UNREPRESENTED)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 08/09/2021 PASSED BY THE LEARNED SINGLE JUDGE IN W.P. NO.14171/2021 AND THE IMPUGNED ORDER DATED

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26/07/2020 PASSED BY THE 2ND RESPONDENT IN CASE NO CHU (2) VIVA / 189/2020-2021 AT ANNEXURE - K TO THE WRIT PETITION. RESTORE THE MEMBERSHIP OF THE APPELLANT TO THE 5TH RESPONDENT PATTANA PANCHAYATH & ETC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN )

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Heard the learned counsel appearing for the appellant and learned Government Advocate appearing for respondents No.1, 2 and 4 as well as leaned counsel appearing for respondents No.3 and 5. Though notice has been duly served on respondents No.6 to 8, there is no appearance for such respondents before us today.

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We have heard the contentions of the learned counsel appearing for the appellant.

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It is submitted by the learned counsel for the

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appellant that the appellant was elected as a Member of respondent No.5 - Panchayath on 31.08.2018 under the

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NC: 2025:KHC:5993-DB W.A. No.1097/2021

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ticket of respondent No.6 - political party. It is submitted that there was an election held for the post of President

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and Vice President of the Panchayath, which was conducted on 05.11.2020. It is submitted that the appellant was unwell as on the said date and was suspected to have COVID-19 and had not participated in the election conducted on 05.11.2020. Whip was issued on 28.10.2020 by the District President of respondent No.6. It is submitted that pursuant thereto, but long thereafter, a notice was issued by the Deputy Commissioner on 17.03.2021 requiring her to show cause as to why she should not be removed from the membership of the Panchayath invoking the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (hereinafter referred to as, 'the Act', for short). It is submitted that the writ petitioner - appellant herein submitted her reply on 23.03.2021, but an order was passed on 26.07.2021 by respondent No.2 which was produced as Annexure-K. The Writ Petition was filed challenging the same.

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The learned counsel for the appellant submits

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that a specific contention had been raised before the learned Single Judge that there was no valid whip in the eye of law, since respondent No.6 - political party had not authorized the District President of the party to issue a whip, and in the absence of a valid whip, no action could have been taken under the provisions of the Act. The said contentions were not accepted by the learned Single Judge and the writ petition was dismissed. It is submitted that other grounds with regard to the delay in submitting the complaint and in conducting of the proceedings by respondent No.2 were also not favorably considered by the learned Single Judge.

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5. Learned counsel for the appellant submits that

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the issue with regard to the existence of a valid whip with proper authorization by the political party concerned, stands covered in favour of the appellant by the decision of the Apex Court in Sadashiv H. Patil v. Vithal D.

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Theke and Others¹ as well as the Bench decisions of this

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Court in B.C. Parthasarathy and Others v. Deputy Commissioner, Mysore District and Others² and in Nijnagouda v. The State Election Commissioner and

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Others by judgment of a Co-equal Bench of this Court dated 19.12.2008 in W.A.No.910/2008 . It is submitted that the very same question has been considered in detail by the Apex Court and it was held that in the absence of specific proof that the signatories of a whip have been authorized by the political party concerned

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to issue the whip, the violation of the whip could not attract the applicability of Section 3(1)(b) of the Act in question. It was held that to incur disqualification under

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the provisions of the Act, there must be a direction issued and the direction must be either by the party, or front to which the councilor belongs, or it must be by any person or authority authorized by the party to issue such a whip.

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The learned counsel would also place reliance on the

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1 (2000) 8 SCC 82

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2 ILR 2012 KAR 1

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NC: 2025:KHC:5993-DB W.A. No.1097/2021

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decision of B.C. Parthasarathy's case, where it has been

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held as follows:

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"13. In the backdrop of the above, the question is whether the Learned Single Judge was justified in the ultimate conclusion reached. No doubt the Learned Counsel for the appellants as well as the Learned Government Advocate for the official respondent sought to contend that the Deputy Commissioner has taken note of the oral evidence and the documentary evidence which was placed before him. Insofar as the factual aspects relating to the manner in which the elections had taken place and the candidature of the persons concerned, the same has been putforth in the statement recorded but the document relied in this regard is the whip that is stated to have been signed by the State President of the JD(S) party. In a circumstance where the validity of the whip is in dispute, unless the same is proved to be valid, the question of defiance of the whip would not arise. In this regard, no document was placed before the Deputy Commissioner or the Learned Single Judge to point out that the JD(S) Political Party had authorised the State President to issue the whip and in that context, the State President had issued the whip in question. In the absence of such material on record, the decision rendered by a Division Bench of this Court in the case of Nijnagouda v. State Election Commissioner [ WA No. 910/2008 DD 19.12.2008] cited by the Learned Senior Counsel, which is also relied on by the Learned Single Judge becomes relevant. The said decision was rendered after analysing the decision of the Hon'ble Supreme Court in the case of Sadashiv H. Patil v. Vithal D. Teke [(2000) 8 SCC 82 : AIR 2000 SC 3044] which is also cited before us."

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"15 . In the background of the observations made by the Hon'ble Supreme Court, as already noticed

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by us, the Deputy Commissioner in the case on hand does not refer to such power being established with reference to the document though it is contended that the JD(S) party has its own Constitution and Rules. In fact the Division Bench in the case of Nijnagouda (cited supra) with reference to the Constitution of the JD(S) Party has recorded a finding as hereunder:

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“The constitution and the rules of JD(S) party which was produced before the Election Commissioner and the writ petition would clearly show that there is no provision in the Constitution and rules of JD(S) party authorising the State President to issue whip. The Learned Counsel appearing for respondent No. 2 and 3 is also unable to point out any provision on the constitution of rules of JD(S) party that the State President of JD(S) party has been authorised under the Constitution and the rules to issue whip. There is also no authorisation issued to the State President of JD(S) party to issue the whip in the present case as no resolution in that behalf has been produced.”

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Having recorded such finding, the Division Bench was of the view that the whip was not a valid one and had also referred to the case of Anandalakshmi (cited supra) wherein the situation was not similar.

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In the instant case also it is contended that, the

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whip in question is not a direction as provided in Section 3 of the Act had been specifically raised by the writ petitioner - appellant herein. However, the learned Single

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NC: 2025:KHC:5993-DB W.A. No.1097/2021

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Judge at paragraph No.13 of the judgment has held as follows:

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"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."

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Learned counsel for the appellant submits that though specific contentions were raised with regard to the authority of the District President of respondent No.6, there was no material placed on record either before the Deputy Commissioner or before the learned Single Judge to show that there was any valid authorization by respondent No.6 party to the District President to issue such a whip. It is contended that in light of the judgments relied on, the finding of the learned Single Judge that earlier whips issued by the District Presidents had been honoured, would have made no difference to the situation and the finding was therefore erroneous.

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Learned Government Advocate appearing for

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respondents No.1, 2 and 4 as well as learned counsel for respondent No.5 would contend that it was for respondent No.6 to have placed the material on record to show that there was authorization to the District President to issue a valid whip and that respondent No.6 apparently had not done so.

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Having heard the contentions advanced, we notice that respondent No.6 had not placed any material either before the Deputy Commissioner or before the learned Single Judge to show that the District President was authorized by the party to issue a whip or a direction in the nature of one issued by him on 28.10.2020. In the above view of the matter and in the light of the judgments relied on by the learned counsel for the appellant, at least two of which are in respect of the very same political party, we are of the opinion that the issue stands covered in favour of the appellant. In the absence of material to show that the whip was issued with due authorization by

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NC: 2025:KHC:5993-DB W.A. No.1097/2021

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respondent No.6 - political party, we are of the opinion

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that the non compliance with the direction could not have resulted in a disqualification which has been inflicted on the appellant by Annexure-K order.

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In the above view of the matter, we are of the opinion that the findings of the learned Single Judge are unsustainable in the light of the decisions relied on. The appeal is, therefore, allowed . Annexure-K, order dated 26.07.2021, issued by the Deputy Commissioner, Tumkur District, shall stand set aside.

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All pending applications, if any, stands disposed

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of.

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12. There will be no order as to costs.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK List No.: 1 Sl No.: 34

Smt Bhagyamma G N v. the Government of Karnataka

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Smt Bhagyamma G N v. the Government of Karnataka

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