1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE5H DAY OF DECEMBER2017R BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR W.P. NOS. 21415-21420/2017 (LB) BETWEEN:
1. PRADEEP SANJEEV SHETTY, S/O SANJEEV SHETTY, AGED AOBUT37YEARS, PRESIDENT-CITY MUNICIPAL COUNCIL, SIRSI, R/AT GANESH NAGAR, SIRSI, UTTARA KANNADA-581 401.
2. 3.
4.
5. SUDHAKAR SHRINIVAS SHETTY, S/O SHRINIVAS SHETTY, AGED AOBUT39YEARS, COUNCILOR-CITY MUNICIPAL COUNCIL, SIRSI, R/AT GANESH NAGAR, SIRSI, UTTARA KANNADA-581 401. SMT. SHILU W/O BLEZ WAZ, AGED ABOUT45YEARS, COUNCILOR, C.M.C. SIRSI, R/AT KASTURBA NAGAR, SIRSI, UTTARA KANNADA-581 401. FRANSIS PEDRU NORONHA, S/O PEDRU NORONHA, AGED AOBUT43YEARS, COUNCILOR-CITY MUNICIPAL COUNCIL, SIRSI, R/AT RAMANBAIL, SIRSI, UTTARA KANNADA-581 401. SHRIDHAR HIRIYA MOGER, 2 6. S/O HIRIYA MOGER, AGED ABOUT40YEARS, COUNCILOR-CITY MUNICIPAL COUNCIL, SIRSI, R/AT MARATHIKOPPA, SIRSI, UTTARA KANNADA-581 401. SMT. RAZIABI A. SHEKH, W/O BASHEER SHEKH, AGED AOBUT47YEARS, COUNCILOR-CITY MUNICIPAL COUNCIL, SIRSI, R/AT INDIRA NAGAR, SIRSI, UTTARA KANNADA-581 401.-. PETITIONERS (BY SRI A.P. HEGDE JANAMANE AND SRI F.V. PATIL, ADVOCATES) AND:
1. DEPUTY COMMISSIONER, UTTARA KANNADA DISTRICT, KARWAR-581 401.
2.
3. INDIAN NATIONAL CONGRESS PARTY REPRESENTED BY PRESIDENT, DISTRICT CONGRESS COMMITTEE, BHIMANNA TIRKAPPA NAIK, AGED ABOUT54YEARS, R/AT AYYAPPA NAGAR, SIRSI, UTTARA KANNADA-581 401. JAGADISH NAGABHUSHAN GOUDA, S/O NAGABHUSHAN GOUDA, AGED ABOUT50YEARS, COUNCILLOR, C.M.C. SIRSI, R/AT BANAVASI ROAD, SIRSI, UTTARA KANNADA-581 401. (BY SRI RAVI HOSAMANI, AGA FOR R1, SRI ANANT HEGDE, ADVOCATE FOR R2 & R3) - RESPONDENTS3THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDERDATED2404.2017 PASSED BY THE RESPONDENT NO.1, I.E., DEPUTY COMMISSIONER, DATED2404.2017 VIDE ANNEXURE-M & ETC. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF
ORDERS ON1610.2017 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThese writ petitions are filed by the petitioners questioning the order passed by the respondent No.1-Deputy Commissioner, U.K. District, Karwar in No.DUDC.2 / VIVA/19/2016-17 dated 24.04.2017 vide Annexure-M disqualifying the petitioners from the post of Councilors of Sirsi City Municipal Council (for short ‘CMC’) upon the complaint filed by the respondents 2 and 3 herein. The impugned order of the respondent No.1 has been challenged under these writ petitions by urging various grounds.
2. Brief facts of the petitions are as under: The petitioners herein had contested the election to the CMC, Sirsi and the results were announced on 11.03.2013 4 declaring the petitioners herein as the elected members of the respective wards. Subsequent to completion of the first term of the office of the President and Vice President of the CMC, Sirsi, a notification came to be issued with regard to the election to the aforesaid President and Vice President for the remaining period. The election was scheduled to be held on 06.04.2015 and thereafter the election for the post of the President and Vice President of the CMC, Sirsi was held and the first petitioner was elected as the President of the CMC, Sirsi. It is further stated that the respondents 2 and 3 herein filed complaint on 30.04.2016 u/S41)(b) r/w Rule 3(1)(b) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short ‘Act’) to the Commissioner of CMC, Sirsi, with a request to refer the same to the respondent No.1 being the Deputy Commissioner on the allegations made that the election for the office of the President and Vice President was scheduled on 06.04.2015 and a meeting was convened in the CMC, Sirsi Block Congress Office on 31.03.2016 and 05.04.2016 to select a candidate for the office of President 5 and Vice President from the INC. As the respondent No.3 was nominated by the party to run for the office of the President, the respondent No.2 served whip on all the councilors of the INC on 05.04.2016 with a direction to vote in favour of the party candidate for the office of the President. Respondent Nos.2 and 3 in their complaint complained that the petitioner No.1 in violation of the whip contested for the office of the President and other petitioners have voted in favour of petitioner No.1 by violating the whip. With the above allegations the complainants sought for disqualification of the petitioners herein and one more Councilor, namely, Amanullah Khan. It is further stated that the petitioners have filed objections denying the allegations made in the complaint. They have denied that two meetings were held on 31.03.2016 and 05.04.2016 and they were served with the whips. Respondents 2 and 3 have specifically contended that they have created and concocted some documents and duplicate whip forms with forged signatures with ulterior political 6 motive. Whereas the petitioners also contended that the respondent No.2 is the President of DCC and he has no power to issue a valid whip. In substance, the petitioners challenge the legality of the alleged whip and also its service on them. The objection which is filed by them is produced as Annexure-P. Copy of the statement of objection filed by the petitioner No.6 along with another councilor namely Amanullah Khan is produced as Annexure-B1. Whereas the respondents 2 and 3 in order to substantiate their case have produced registers of meetings said to have been held on 31.03.2016 and 05.04.2016 and got marked them as Ex.P.24 and also whip forms alleged to have been acknowledged by the petitioners and Sri.Amanullah Khan who was the respondent No.7 in the complaint before the respondent No.1. In so far as the power of the respondent No.2 to issue whip is concerned, respondents 2 and 3 produced copy of the resolution passed by the Executive Committee of KPCC dated 10.01.2004 marked as Ex.P.11, by which, the power to issue whip was delegated to the President of KPCC. The letter 7 issued by President of KPCC dated 11.05.2012 is marked as Ex.P.15. The General Secretary of KPCC, on 30.03.2016 has issued a letter and the same is marked as Ex.P.12 delegating the power to issue whip to the President, DCC and the copy of the same is marked as Ex.P.12. Whereas the respondent No.2 subjected himself to examination in support of the complaint allegations apart from cross-examining the other three witnesses, copy of the deposition of respondent No.2 is produced vide Annexure-F. Whereas in the defence the petitioners 1, 4 and Sri Amanullah Khan, who was arrayed as respondent No.7 in the complaint, were examined to substantiate the claim pleaded in the statement of objection filed by them. Deposition of the petitioner Nos. 1, 4 and Amanullah Khan is produced vide Annexures G, G1 and G2.
3. Petitioners have also examined one person namely Ashok R. Surannanavar, who, according to respondents 2 and 3, was present in the meeting of 05.04.2016 and has 8 signed the meeting register. Shri Ashok R. Surannanavar, to prove his identity and signature produced his PAN card and deposed on oath that he was not present in the alleged meeting dated 05.04.2016 and did not subscribe his signature in the meeting register. Ex.P.24 is the said register. He deposed that the signature found at Ex.P.26 in page no.10 is not his signature. The impugned order at Annexure-M passed by the respondent No.1 is illegal and not sustainable in law. Being aggrieved by the order passed by the respondent no.1- the Deputy Commissioner of Uttara Kannada District, Karwar, these writ petitions are filed challenging its validity amongst other grounds. For all these grounds the petitioners are seeking for allowing the writ petitions by quashing the impugned order passed by respondent no.1 dated 24.04.2017 and for such other rleiefs.
4. Whereas the respondents 2 and 3 filed their objections contending that the petitions filed by the petitioners is not maintainable. The order passed by the respondent no.1 being 9 the Deputy Commissioner of U.K. District is challenged in these writ petitions as per Annexure-M, is the authority constituted under The Karnataka Local Authorities (Prohibition of Defection) Act, 1987. It is well settled principles of law that while exercising the jurisdiction under Article 227 of the Constitution of India, the Court would consider the legality of the decision making process rather than legality or otherwise of the order passed by the competent authority. Under these circumstances, the contentions which are raised in the writ petitions need not be examined as they are beyond the scope of jurisdiction of Article 227 of the Constitution of India, whereas the allegation made in the writ petitions which are not specifically admitted are to be deemed to have been denied. The respondent No.1 after considering the contentions of the complaint at Annexure-A and also contention in the statement of objections referred at Annexures-B and B1, apart from the oral and documentary evidence adduced in order to establish their case relating to the allegations made in the complaint at 10 Annexure-A as the respondent No.1, has come to the conclusion that the petitioners have violated the whip issued by the Indian National Congress (for short ‘INC’) and also they have violated the provisions of Act. Therefore, the respondent no.1 held that the petitioners have incurred disqualification and to arrive at such a conclusion, the first respondent has complied the principles of natural justice. Further taken contention that the petitioners based on the law laid down by the Hon’ble Supreme Court in Sadashiv Patil’s case is totally misplaced and the ratio does not helpful to the petitioners they contended.
5. Further contended that the political party has not passed any resolution to issue whip, is not correct. In the instant case, on complaint no.1 it is as political party which fact is not in dispute to contend the party does not issue whip in question and the fact that on 10.01.2016 the resolution is passed by the political party for issuance of whip. Under these circumstances, the KPCC could not have issued whip, 11 is totally a baseless contention and does not survive for any contention though taken by the petitioners in the writ petitions. Further contended that the President of KPCC could not have delegated the power to issue whip is again contrary to the bye laws of the political party. In the instant case the President, KPCC, served whip through DCC which is permissible under law for which the petitioners cannot raise any objection when they are served with the whip in writing with a specific direction by the respondent no.2. The whip is in writing and service is made in the form of acknowledgement. Respondents 2 and 3 herein have filed detailed objections which are stated in detail and praying for dismissal of the writ petitions filed by them as devoid of merit and do not have any substantial grounds to interfere with the impugned order passed by the Deputy Commissioner, respondent No.1 for disqualification of the petitioners being the members of Sirsi CMC. 12 6. The learned counsel appearing for the petitioners has contended during the course of his arguments by reiterating the grounds urged in the writ petitions that, the impugned order passed by the respondent No.1, being the Deputy Commissioner of U.K. District, Karwar, is not sustainable under law as he did not appreciate the evidence on record. As the petitioners being the elected representatives of Sirsi CMC and also not followed the principles laid down in Sadashiv Patil’s case reported in AIR2000SC3044 Even if it is presumed to be that the Executive Committee of the KPCC had power to issue whip, but the President, KPCC, could not have delegated the power to issue whip, to any other office bearers, as per the Constitution of Indian National Congress party. Even though the resolution No.3 dated 10.01.2004 was passed by the Executive Committee KPCC in respect to delegate the power to issue whip to the President, KPCC as per Article XXVII(b) of the constitution of Indian National Congress. 13 7. In the present case, it is the case of the complainant that the President of KPCC has delegated the power to issue whip, to the General Secretary and in turn the General Secretary has further delegated the power to the President, DCC. It is required to be examined keeping in view the evidence of the complainant being the respondents 2 and 3 herein, whether such delegation is permissible under the constitution of Indian National Congress. Even to the terms of the resolution No.3 dated 10.01.2004 but the Chapter called as “Disciplinary Rules (2)” page No.31, it is made it clear that the Working Committee shall be competent to delegate its power to a sub committee under XXVII(b). But, neither the Executive of the INC, KPCC or DCC had delegated its power. Therefore, it is clear that, in execution of the party whip even the President of KPCC is having power to delegate the power to issue the whip. Whereas the complainants/ respondents 2 and 3 are contending that, as per Ex.P.11, the President of KPCC has delegated the power and as per Ex.P.12 the President of KPCC delegated its power to the 14 General Secretary and finally the General Secretary as per Ex.P.15 delegated the power to issue whip, to the President of DCC.
8. In respect of the noted Rules of the constitution of Indian National Congress, contended supra, no executive of the party can delegate his power. In so far as Ex.P.12 and 15 it has become clearly illegal and no credentiality shall be given and the President, KPCC could not have delegated his power, to any other official and as such the President of DCC has no power to issue the whip in question. Based upon the complaint, proceedings have been initiated before the respondent No.1 being the Deputy Commissioner of U.K. District, Karwar, but the burden to prove the service of whip is always on the complainant being the respondents 2 and 3 herein. The respondents in the complaint proceedings cannot be called upon to prove that they have not put their signatures. But, under Sec. 101 of the Indian Evidence Act, a person who asserts a fact as the burden to prove it and not 15 the one who denies the fact. In the present case the complaint filed by the respondents 2 and 3 are asserting that the respondents have put their signatures in the duplicate whip forms, however, they are denying this allegation. Hence, it is incumbent upon the complainant to prove the signatures by referring the matter to the handwriting experts. But the complainants have not chosen to take assistance of the hand writing experts to prove their signatures and did not expose their acts of forgery. But the alleged signatures of the respondents is not found in the column reserved for signatures and it is found at the bottom of whip form,which also creates enough suspicion and the same is also not explained by the complainants being respondents 2 and 3.
9. The respondent No.1 Deputy Commissioner of U.K. District without application of mind and also not properly appreciated the evidence which has put forth by the complainant and also refused to consider the genuineness of meeting register keeping in view the evidence adduced by 16 Ashok. R. Surannavar, on the erroneous presumption that they are the internal matters of the party, whereas the respondent No.1 failed to understand that whether meeting was held on 05.04.2016 or not, was of utmost importance as service of whip, according to the complainant, were made in the said meeting and if the meeting dated 05.04.2016 is not proved, it would automatically relating to interference that the whip is not served upon the petitioners.
10. For all these grounds the learned counsel for the petitioner has sought for allowing the petitions and setting aside the impugned order passed by the respondent No.1 being the Deputy Commissioner of Uttara Kannada District, Karwar, vide Annexure-M, disqualifying the petitioners from the post of Councilors of Sirsi, CMC.
11. Whereas the learned counsel appearing for the respondents 2 and 3 herein submitted written arguments. It is contended in the written arguments that, the order of the respondent No.1 is justified in view of the petitioners violating 17 the whip issued by the Indian National Congress Party relating to the election to the office of President and Vice President of CMC, Sirsi. The party whip was served on all the petitioners in writing, despite of it, the petitioners voted against the party whip. As required under law, the complaint was lodged before the competent authority under the Act to decide the issue. The petitioners were served with the complaint and were given opportunity to contest the case. The petitioners filed their statement of objection. After recording the oral and documentary evidence and hearing the arguments, the respondent no.1 on appreciation of the oral and documentary evidence passed disqualification order u/S31)(b) of The Karnataka Local Authorities (Prohibition of Defection) Act, 1987.
12. The respondents placed reliance on the judgment of Hon’ble Supreme Court in the case of Surya Dev Rai reported in AIR2003SC3044to substantiate their contention. They contended that the whips were duly served 18 on the party members. The contention of the petitioners that the whip issued by the party is served through the President, KPCC, who, in turn delegated it to the President DCC, is based on erroneous interpretation of mode of service of whip. The petitioners were very much present in the meeting which was convened for the purpose of choosing the official candidate. The whips were served as per the documents marked at Annexures D1 to D6. The contention of the petitioners that the signatures found on the documents are not their signatures, are false.
13. The respondents 2 and 3 herein submit that they learnt that the Hon’ble Supreme Court of India has laid down a law to the procedure that is to be followed when the Courts are confronted with conflicting judgments. The Supreme Court in the matter of Sundeep Kumar Vs. Stae of Maharashtra and others reported in SCC2014623 has held at paragraph no.19 as under:
19. “It cannot be over emphasized that the discipline demanded by a precedent disqualification or disinution of decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty.” 14. In the alternative, the respondents 2 and 3 would also submit that, in view of the fact that two conflicting views are expressed by the Division Bench of this Court, then the course that would be open for the Court is to refer the matter to a larger bench for finding on the conflicting views expressed by two co-ordinate benches.
15. In view of the above, the respondents 2 and 3 prayed for dismissal of the writ petitions by confirming the order of the first respondent dated 27.04.2017 and in the alternative if the Court comes to the conclusion that there are two conflicting judgments of the Division Bench of this Hon’ble Court and hence the case may be referred to a larger bench.
16. In view of the above said rival contentions that the following point would arise for consideration of this Court:
20. Whether the order passed by the respondent No.1- Deputy Commissioner, Uttara Kannada District, Karwar, by holding disqualification of the petitioners herein u/S31)(b) of The Karnataka Local Authorities (Prohibition of Defection) Act, 1987, is justified under law?.
17. Whereas in these petitions are concerned, it is relevant - - - to state the factual aspects as to how the President, DCC claims to have acquired right to issue whip to the petitioners herein. The instant complaint has been filed by the complainant u/S4r/w Sec. 3 (a) and 3(b) of the Act. The complainant No.1 being the INC Party is represented by its President-Sri Bhimanna T Naik, who is authorized by the President of KPCC, to file complaint as per the resolution passed on 10.01.2014 on behalf of the INC. The respondent No.2 is the elected councilor of the CMC, Sirsi, during the election held in the year 2013 and also the contested party candidate for the post of President of Sirsi, CMC, as decided by the INC Party. But, unfortunately despite service of whip 21 the petitioners herein have voted against the party candidate and thereby violated the direction given by the authorized official of the INC party. As per the decision of the party, meetings were held on 31.03.2016 and 05.04.2016 as the complainant No.2 was selected to be contested for the post of President of CMC, Sirsi, in the election to be held on 06.04.2016. Whereas, on 05.04.2016, the President, DCC has served whip as per the direction issued by the INC Party to the opponents/ petitioners herein and councilors to vote in favour of the complainant No.2 only, failing which, they will be liable to be held for Anti-Defection Act.
18. There is no dispute that the complainant No.2 and respondents 1 to 7 who are the petitioners herein were elected as councilors in the year 2013 by contesting under the umbrella of INC Party symbol. The President, KPCC – Dr.G.Parameshwar issued a letter as per the resolution of the Executive Committee, Bengaluru, that the President, DCC, U.K.District, Karwar, is legally authorized to issue whip to the 22 party councilors with instructions to them to cast their votes to the complainant No.2, fielded by the INC for the post of President, CMC, Sirsi. The President, DCC, U.K.District, Karwar, has issued whip relating to the petitioners/ respondents in the complainant proceedings, as the election was to be held on 06.04.2016. Whereas the petitioners/ respondents herein, contended that the signatures on the whip and the resolution book marked as Ex.P.24 are forged as well as fabricated. This contention is taken by the learned counsel appearing for the petitioners herein. But the complainant who has initiated the proceedings before the respondent No.1-Deputy Commissioner, Uttara Kannada District, Karwar, it is required to be proved that the whip is duly issued by the recognized political party as per law and the said whip is duly served and the direction of the party as per the whip is violated, is the contention of the learned counsel for the petitioners and placed the decision of the Hon’ble Supreme Court reported in AIR2000SC304423 between Sadashiv H. Patil V. Vitthal D. Teke and Others wherein at paragraph No.13 it is held as under: “13. A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with democratic procedure of constituting a local authority. The consequences befall not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected Councillor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference under Section 7 of the Act.” - - - 19. Whereas in the aforesaid judgment the Hon’ble Supreme Court held that, considering the penal consequences as elected representatives will be disqualified and its repercussions on the functioning of the local body from the provisions have to be construed strictly and strict proof is 24 expected. Therefore, the complainant who has initiated proceedings against the petitioners herein before the respondent No.1, are required to be proved without any clouds of doubt. Therefore, strict proof is very much required. The allegations made in the complaint filed by the complainant being the Members of the Sirsi, CMC, as wherein it has initiated proceedings against the petitioners herein. But the complainant has taken contention that the Executive Committee of the KPCC has passed a resolution on 10.01.2014 delegating the power to issue whip, to the President, KPCC. The political party recognized by the Election Commission of India can issue the whip as per law, is to be noted and this contention is taken by the respondents herein. But it is relevant to extract Article 19-C of the Constitution of INC, it is extracted as that its Working Committee called as ‘CWC’ is its highest decision making body so far as CWC can issue a valid whip in the eye of law. But, nothing is placed on record by the complainant with concrete materials who has initiated the complaint 25 proceedings stating that the CWC has delegated power to issue whip to the Executive Committee of the KPCC and therefore the Executive Committee of the KPCC itself has no power to issue whip. In such circumstances, the whip issued by the very President or General Secretary, KPCC, cannot be recognized as a valid whip, in the eye of law. It is contended by the learned counsel appearing for the petitioners/ respondents in the complaint.
20. The Executive Committee of the KPCC in its resolution No.3 dated 10.01.2014 decided to delegate the power to issue whip to the President, KPCC, as per Article XXVII(b) of the Constitution of INC which is the contention of the complainant/ respondent herein that the President, KPCC has delegated the power to the General Secretary, KPCC and in turn, the General Secretary, KPCC, has further delegated it to the President of DCC. Therefore, the point which is required to be decided as to whether such a delegation is permissible under the constitution of INC. Therefore, the 26 Article XXVII(b) of the Constitution of the INC is extracted herein for analyzing the issue. “A Committee may delegate any of its power to a smaller Committee or an individual.” - - - 21. Whereas the aforesaid Article of Constitution of INC is clearly stated relating to the disciplinary rules (2) the Working Committee shall be competent to delegate its authority to a sub committee under Article XXVII(b). But, neither the executive of the INC nor the KPCC shall delegate its power. Therefore, it is made clear that any executive of the party, if the President of KPCC is having any power to delegate his power. Whereas the complainant who had initiated the complaint proceedings before the respondent No.1/ Deputy Commissioner, U.K. District, Karwar, taken contention that the whip issued by the President of DCC as per Ex.P.11 as the President of KPCC was delegated with the power and as per Ex.P.12, the President, KPCC, delegated its power to the General Secretary and in turn the General Secretary vide 27 Ex.P.15 delegated the power to issue whip, to the President, DCC. Therefore, from the above noted rules of the Constitution of INC, it is clear that no executive of the party can delegate its power. Therefore, the tenor of Ex.P.12 and 15 clearly found to be illegal and the President, KPCC could not have delegated his power at all, since the complainant No.1 who had no power to issue whip on behalf of the party, as this contention was also taken by the learned counsel appearing for the petitioners herein, before the complaint proceedings initiated relating to whether the whips were duly served on the respondents and this complaint deserves to be dismissed wherein the complaint No.1 had no power for issuance of whip. Because the whips were not duly served upon the respondents. The alleged two signatures of each respondents being the petitioners herein found in Ex.P.24 register and in duplicate whip forms as per Exs.P.1 to 7 do not bear their signatures. But the petitioners are only admitting the signatures found in the register produced by the Assistant Commissioner, Sirsi, regarding the proceedings 28 held on 06.04.2016 relating to the election of the President and Vice President of CMC, Sirsi. Therefore, it is clearly admitted by the complainant No.1, in his cross-examination that the signatures found in the election proceedings register and the signatures in Ex.P.24 register and relating to the whip forms are founds variation. This contention was also taken by the learned counsel for the petitioners herein. But, on the bare eyes it could be seen that the alleged signatures at Ex.P.24 register and whip forms as per Exs.P.1 to 7 do not tally with each other, but the complainant who had initiated complaint proceedings is contending that the respondents / petitioners have deliberately made different signatures to save themselves from disqualification. This contention found to be illogical, in view of the circumstances in which it is alleged that the respondents have put their signatures.
22. In the instant proceedings for disqualification of the elected members on filing of the complaint and based upon that, the burden is upon the complainant to prove the service 29 of whip. Therefore, the petitioners herein cannot be called upon to prove that they have not put their signatures as u/S101of the Indian Evidence Act. Therefore, the person who asserts a fact has the burden to prove it and not the one who denies the fact. This contention is taken by the learned counsels appearing for the petitioners during the course of arguments.
23. Whereas respondents 6 and 7 being the petitioners herein who had strongly denied the assertion of the complainant that meetings were held on 31.03.2016 and 05.04.2016 in INC Party for election of the post of President and Vice President of CMC, Sirsi. Further emphatically denied that the petitioners herein have violated any of the direction issued by the party and that they have not committed any defection under the Act. No meetings were held on 31.03.2016 and 05.04.2016 to decide the party candidates to be fielded for the post of President and Vice President of CMC, Sirsi. The petitioners contend that all 30 those documents are fabricated by the complainant and the signatures found in the meetings register are forged, as this contention is also taken by the learned counsel appearing for the petitioners.
24. That the respondents 6 and 7 before the complaint proceedings have never attended any such meetings. No such meetings were held to the knowledge of these respondents and they have not signed to any such register or duplicate whip form on 05.04.2016. There was no direction by the party to vote in favour of any particular person to be fielded for the post of President and Vice President. Whereas the respondents 6 and 7 being the elected members as before the complaint proceedings initiated on the filing of the complaint before the respondent no.1-Deputy Commissioner are the loyal workers of INC party and they never committed any defection as alleged in the complaint. They have taken further contention that, no whip was issued to them by the party. That the complaint No.1 Bhimanna Naik is not 31 competent to issue whip and he has no authority at all to issue whip on behalf of the INC Party. Whereas the contention which was taken by the learned counsel for the petitioners as well as the learned counsel appearing for the respondents relating to an order passed by the respondent No.1 disqualifying the petitioners herein is concerned, it is relevant to extract the resolution No.3 adopted unanimously by the Executive Committee Meeting held on 10.01.2014, at KPCC office, which reads as under: The Resolution adopted unanimously by the Executive Committee Meeting on 10.01.2004 at KPCC Office is herewith reproduced, which delegates the power to the President, KPCC to issue party directions or whip. Resolution 3 In a resolution adopted unanimously, as per the provisions of Article XXVII(b) Constitution Indian National Congress the Executive Committee of the Pradesh Congress Committee, delegates, power to issue the party direction (whip) to vote or to abstain from voting in or intentionally remain absent from any meeting of Local Authorities contrary to the direction given by the party. The President, KPCC is also authorized to delegate the power to the General Secretary of KPCC or to the 32 President of District Congress Committee or President of Block Congress Committee of Local Authorities to issue the Party Direction (whip) to the elected party members under their jurisdiction. It is also resolved to empower the President KPCC to authorize the General Secretary or Presidents of the District and Block Congress Committees to proceed against the defeated member who has voluntarily given up the membership of the Congress party or defied and violated the party direction (Whip) before the competent authority.-. - - In pursuance of the above resolution Sri N.S. Bosaraju, 25. General Secretary, KPCC, issued Ex.P.12-authority letter dated 30.03.2016 to Sri Bhima Naik, President, DCC, U.K. District, Karwar.
26. The core issue in these petitions is that, whether the whip is properly served to the elected members/councilors of the INC party, as contended by the complainant for having initiated the present proceedings against the petitioners herein. In this regard Exs.P.1 to P.7, whip forms issued to the petitioners herein are marked but they have denied the signatures itself as forged and fabricated. 33 27. As per Sec. 73 of the Indian Evidence Act, it empowers to confirm the disputed signatures of the petitioners herein with their admitted signatures, when there is no expert opinion adduced by both the parties. This contention as taken by the learned counsel appearing for the petitioners vehemently, keeping in view that Bheemanna Naik, President, DCC, as the complainant No.1 and also in his cross- examination relating to the complaint it has filed for disqualification of the petitioners herein as Jagadish Nagabhushan Gowda, being the complainant No.2, as a sitting Councilor of CMC, Sirsi and contesting candidate for the post of President as a party candidate, as this complaint it has filed by them dated 30.04.2016 as they have made an allegation against the petitioners herein being the opponent in the proceedings it has held before the respondent No.1/ Deputy Commissioner of U.K. District, Karwar, as they have violated Sec. 3(1)(b) r/w Sec. 4(1)(b) of the Act, despite of a whip as issued by the competent authority relating to the election of the post of President and Vice President of CMC, 34 Sirsi, as wherein the complainant No.2 Jagadish Nagabhushan Gowda, being the sitting councilor fielded as INC candidate and so also the meetings held on 31.03.2016 and 05.04.2016 as this complainant No.2 was fielded as the candidate for the post of President of CMC, Sirsi, as the complainant No.2 who filed his nomination in accordance with law before the Returning Officer as the election of the President of CMC, Sirs, scheduled to be held on 06.04.2016 as the Returning Officer being the Assistant Commissioner of Sirsi Sub Division, Sirsi. As the petitioners herein being the opponents in the complaint proceedings initiated before the respondent No.1, as the petitioners herein are violating the whip and direction issued by the competent authority of the official party. As they alleged to have illegally voted in favour of the opponent no.1, in the complaint proceedings. As all the petitioners herein have committed defection under the provisions of the ‘Act’ and they are liable to be disqualified under the ‘Act’, as this contention which is taken in the complaint petition filed by the complaint Nos.1 and 2. 35 28. As counter to this, the learned counsel appearing for the petitioners herein has stoutly argued that, it is relating to issuance of whip and also power of the President, KPCC, relating to authorization and delegation of the same, to the General Secretary, KPCC or the President, DCC, U.K. District, Karwar, to issue whip to the party members. As the General Secretary namely Sri N.S. Bosaraju, who communicated the complainant No.1, being the President of DCC, regarding issuance of direction to issue whip to the members of the party. Whereas the core contention is that the issuance of whip as involved in this petition as wherein it is questioning the legality and sustainability of the order passed by the respondent No.1-Deputy Commissioner and so also the sub delegation as well as service of whip, but it can not be further sub delegated as where the power of General Secretary, KPCC, to issue whip to the President, DCC.
29. Whereas the petitioners herein who have filed objections in detail denying the allegations made in the complaint filed 36 by the complainant No.1 being the President, DCC and complainant No.2 being the Councilor of CMC, Sirsi. Though the whip issued by the concerned complainant No.1 which is in turn receipt of a direction from the competent authority of General Secretary, KPCC and also in turn he received direction of issuance of whip from the President of KPCC as keeping in view the evidence of CW1 and also in his cross- examination thoroughly done by the defence counsel that the petitioner herein as where the disciplinary proceedings initiated against them before the respondent No.1.
30. In the resolution dated 31.03.2016 it was unanimously adopted by the Executive Committee Meeting held on 10.01.2004 at KPCC office as herewith produced as Annexure-E which is marked as Ex.P.11 before the complaint proceedings which delegates power to the President, KPCC, to issue party direction or whip.
31. Whereas in W.P. No.21381 & connected matters, this Court had held that the tenor of the said document by way of 37 resolution would not amount to sub delegation and whip is validly issued. This contention is taken by the learned counsel for the respondents during the course of his arguments in support of the grounds as urged relating to the order passed by the respondent No.1, being the authority under the ‘Act’. Whereas the said judgment is confirmed in W.A. No.843-847/2016 & connected matters by the Division Bench of this Court and common order of this Court in W.P. Nos. 11335-36/2017 wherein the learned Single Judge of this Court who has taken the view that there is sub delegation by the General Secretary, KPCC, and the same is not properly noticed by the learned single Judge who passed the order in W.P. Nos. 21381 & 21463-67/2015 and confirmed in appeal. This order, i.e., the order in W.P. No.11335-36/2017 is again confirmed in the Writ Appeal. In this aspect it is relevant to place judgment of the Hon’ble Supreme Court as reported in 2008 (10) SCC1wherein it is held that the propriety of judicial discipline requires and the judgment of the co- ordinate bench cannot be held to be wrong and different 38 opinion cannot be expressed, but it can refer to a larger bench. It is specifically stated that the pronouncement made in W.P. Nos. 21381 & 21463-67/2015 may be distinguished even though the documents are understood in a proper perspective. Therefore, the contention which is taken by the learned counsel for the respondents herein relating to obiter dicta and also it requires to be referred to a larger bench, does not hold any substance.
32. Whereas the learned AGA for the respondent No.1- Deputy Commissioner who has taken contention relating to scope and object of the ‘Act’, that though the issuance of whip by the President, KPCC and also delegating the power to President, DCC, it is in the letter and spirit and the said whip notice has been duly served upon the petitioners and the same has been seen in the complaint filed by the complainant No.1 and the complainant No.2 being the official candidate fielded to the post of President. Inspite of issuance of notices, 39 the petitioners herein had casted their votes against the official party candidate.
33. Whereas the ‘Act of 1987’ is brought to maintain discipline in the democratic set up being elected member to follow the guidelines and the resolution which is passed by the organization of the KPCC and in turn to the President, DCC. The aforesaid resolution dated 31.03.2016 has been appreciated by the respondent No.1, who has passed the impugned order on 24.04.2017 vide Annexure-M as the disqualification of the members, as the learned AGA who supported the order of the respondent No.1 and the same shall be maintained by dismissing the writ petition filed by the petitioners.
34. Whereas in this petition the order passed by the respondent No.1 is called in question by urging various grounds before this Court in their petitions. The main grounds urged in these petitions are that there was no authority to the President, DCC, to issue whip on the 40 petitioners being the elected members of the CMC, Sirsi, as the said power is vested with the Congress Party. Therefore, issuance of whip itself is invalid. The alleged whip is also not duly served on the petitioners being the elected members and it found to be camouflage, such as clouds of doubt, this contention is taken by the learned counsel appearing for the petitioners. Therefore, it is further contended that the aforesaid ‘Act’ does not apply to the case on hand relating to Sec. 3(1)(a)(b) r/w Sec. 4(1)(b) of the Act.
35. Whereas the complaint proceedings initiated before the respondent No.1 on the basis of the complaint of complainant No.1 and also the complainant no.2 and thereafter he has provided an opportunity to both the parties to establish their case, the petitioners herein had filed objections in detail denying the entire allegations made in the complaint and thereafter proceeded in the complaint proceedings for recording the evidence produced by the complainant No.1 Bhimanna Naik, President, DCC. 41 36. Whereas the complainant No.1 who has been subjected to examination before the respondent No.1 in order to establish their case against the petitioners that, in the course of his examination got marked Exs.P.1 to 24. The impugned order passed by the respondent No.1 reveals that PWs.1 to 3 have been examined and also got marked documents in order to establish the allegations made in the complaint. On the part of the petitioners herein, one Ashok Surannavar and Deepak Vaingaonkar were examined as RW1 and RW2. In order to establish their case relating to the objection filed by them wherein it has been filed in detail, but at a cursory glance of the entire evidence putforth by the complainant no.1, in order to establish the allegations made in the complaint and so also the evidence putforth by the respondents/ petitioners herein, that the learned counsel strenuously taken contention that, it is the Congress Party represented by its State President, competent to issue whip and also having authority, but it cannot be delegated to any of the subordinates even to the President, DCC, in order to 42 serve whip notice on a particular person. Therefore, the President of DCC, being the complainant No.1 who has been requested to be prove in order to authorize issuance of whip and thereby the alleged whip said to have been duly served upon the petitioners, being the elected members, by putting forth concrete evidence. It is further contended that there is no service of whip notice in accordance with law as therein a fabricated document of whip and so also forged signatures. This contention is taken by the learned counsel for the petitioners who have filed objection in detail to the complaint filed by the complainants 1 and 2 being the official candidate fielded to the post of President of CMC, Sirsi.
37. Whereas the allegations made against the petitioners herein for violation of the conditions of the whip issued by the competent authority of the KPCC and in turn the delegation of power to issuance of whip to the members of their party for having casting their vote to the fielded candidate for the post of President, CMC, Sirsi. 43 38. At this stage it is relevant to refer Sec. 3(1)(b) of the Act, which reads as under:
3. Disqualification on the ground of defection – (1) subject to the provisions of Sections 3-A, 3-B and 4, a Councillor or a member, belonging to any political party, shall be disqualified for being such Councillor or member- (b) if he votes or abstains from voting in, or intentionally remains absent from any meeting of the Municipal Corporation, Municipal 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.-. - - 39. Whereas the said Section connotes that, if the Councilor from the party votes or abstains from voting in, or intentionally remains absent from any meeting of the Municipal Corporation, Municipal Council, Town Panchayat, Zilla Panchayat or Taluk Panchayat, contrary to any direction 44 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.
40. Whereas in this petition the core issue is relating to issue of whip and its service to the particular candidate to follow the direction relating to casting of vote to the official party candidate.
41. In the instant petitions it is relevant to state that, though the Evidence Act is not strictly applicable to the complaint proceedings initiated against the petitioners herein before the respondent No.1 on the complaint filed by the complainant Nos.1 and 2, for disqualification of the elected members as per Sec. 4(1)(b) r/w Sec. 3(1)(b) of the Act, but nevertheless the principles of natural justice always demand that the hearsay evidence cannot be simply admissible before the Court of law or any authority. But in these petitions on 45 the filing of the complaint by the responsible persons being the complainant No.1, i.e., Indian National Congress represented by its President, District Congress Committee and the complainant No.2-Mr. Jagadish, the complaint proceedings were conducted. Therefore, it is stated that, according to the tenor of law, that the hearsay evidence is no evidence before the Court. Of course, the hearsay evidence can also be established if it is arisen out of the same transaction and if it needs to be looked into and so also the appreciation of the evidence on record. Exs.P.1 to 24 were got marked to establish the allegations made in the complaint filed by them against the petitioners being the elected councilors of CMC, Sirsi.
42. P.W.1-Vinod Bommaiah Naik has given evidence in the complaint proceedings initiated against the petitioners herein. P.W.2-Smt. Aruna Dattatreya Vernekar and P.W.3-Smt. Ramya Ravi Chandavarakar have been subjected to examination to establish the allegations made in the 46 complaint. On behalf of the respondents/ petitioners herein, one Ashok R. Surannavar and R.W.2 Sri Deepak Waingaonkar have been subjected to examination. The alleged whip issued in the form of a direction, marked as Annexure-E is at Ex.P.11. Annexure-E1 is marked as Ex.R.15. Annexure-E is issued by the General Secretary, KPCC, Bengaluru. Annexure-E1 is the letter is issued by the President, KPCC, Bengaluru. But, the point involved in these petitions is that, whether the whip is properly served on the councilors. Exs.P.1 to P7 are the whip forms issued to the respondents 1 to 7, the petitioners herein. The complainant contends that the whip forms bear the signatures of the petitioners herein, but the same is denied by contending that they are forged and fabricated, however, the same have to be carefully compared with the admitted signatures. The signature of respondent No.7 Sri Amanullah Khan found in the register is in Urdu language but the signature on the whip form is in English. 47 43. Whereas the petitioners herein have contended that Sirsi Block Level Congress Committee meetings were not held on 31.03.2016 and 05.04.2016 for deciding the party candidates to be fielded for the post of President and Vice President of CMC, Sirsi. The same has been incorporated in the impugned order dated 24.04.2017 passed by the respondent No.1. They have contended that the Annexures E and E1, i.e., Exs.P.11 and P.15, are the vital documents including the whip forms at Exs.P.1 to P.7 were not issued to them and they are also not served on them. At this stage itself it is relevant to extract Article XXVIII(b) of the Constitution of INC with regard to delegation of power. “Article XXVII – Miscellaneous A Committee may delegate any of its power to a b) smaller Committee or an individual.” - - - It is further relevant to extract Article XIX (c) of the Constitution of INC which reads as under:
48. “Article XIX – Working Committee c) The Working Committee shall be the highest executive authority of the Congress and shall have the power to carry out the policies and programmes laid down by the Congress and by the AICC and shall be responsible to the AICC. It shall be the final authority in all matters regarding interpretation and application of the provisions of this Constitution.” - - - 44. If the aforesaid Articles of the Constitution of INC are read meticulously keeping in view the tenor by plain interpretation and understanding of the same, it gives meaning of whatever the breach of discipline is occurred by any member of the Congress party subordinate to it, then only the Executive Committee can take action against the committee subordinate to it and members of DCC and all its subordinate committee. Rule 1(c) of Disciplinary Rules reads thus: “c) The executive of a DCC can take action only against Committees subordinate to it and members of the DCC and of its subordinate Committees provided that the DCC can not take such action against a person who is a delegate or a member of a Legislature. In such cases it can only make recommendations to the competent authority for taking disciplinary action.” - - - 49 45. Whereas the specific provision u/S31)(b) of the ‘Act’ which only authorizes a party or any person or that party authorized by a party to issue direction or whip by interpreting this rule as well as the power it is vested with them. At no stretch of imagination it can be said that the President, DCC, has got any independent right in order to issue whip to the members of the Congress party, particularly the respondents before the complaint proceedings initiated as where the petitioner has been challenging the impugned order passed by the respondent No.1 for having held disqualification of the membership as keeping in view Sec. 3(1)(b) of the Act. Therefore, in this background it is relevant to note here a decision of this Court in 2016 (1) KLJ403Smt. Anitha H. Basavaraj & Others Vs. Karnataka State Election Commission, Bengaluru & another. Almost similar facts and law are involved and considered wherein this Court has held as under: “Karnataka Local Authorities (Prohibition of Defection) Act, 1987, Section 3(1)(a) and 3(1)(b)-Disqualification on ground of defection-Elections to Chitradurga Zilla Panchayat-Allegation 50 of flouting of whip issued by President of DCC-Issue of authorization to issue whip-Held, though framed as first issue, the Commissioner, before disqualifying petitioners, failed to enquire about authorization issued by President, KPCC, in favour of President, KPCC, DCC-In the absence of such authorization-Entire case falls apart-Most crucial document is conspicuously missing from evidence-Therefore, it cannot be held that President of DCC was duly authorized to issue whip- impugned order of Commissioner-Not justified, set aside.” It is relevant to note here the relevant factual aspects of the case apart from the principle laid down by this Court at paragraph No.7 of portion of the said decision read as thus: “7. Mr. Prakash T. Hebbar, the learned counsel for the petitioners, has vehemently contended that the requirement of law is that proper delegation of power has to be made from the President of KPCC to the President of DCC. However, in the present case, there is not an iota of evidence to show that there is delegation of power from the President of KPCC to the President of DCC. The only document which has been produced before the learned Commissioner was a whip issued by the General Secretary, by letter dated 10.07.2014, which merely state that “in terms of the order of the President of KPCC, Mr. M.S. Sethuram, the President of DCC is authorized to issue whip to the elected members from the Congress Party 51 to vote in favour of the Congress party candidates”. Such an authorization issued by the General Secretary to the President of DCC could not form the basis for issuance of the whip by the President of DCC. For the order issued by the President is conspicuously missing in the present case.” 46. Whereas keeping in view the aforesaid case as referring to Anitha’s case and considering the facts as well as law involved in these petitions by initiating the complaint proceedings against the petitioners herein before the respondent No.1, on the filing of the complaint by the complainants 1 and 2 being the responsible persons made an allegation that the whip issued by the President, DCC, Sirsi, relating to the delegation of power and also sub-delegation, is not with a proper and correct authority.
47. Whereas the learned counsel appearing for the respondents 2 and 3 has vehemently taken contention that the principle of delegator non protest delegare is pressed into service by the petitioners being the elected members has no application in the case and that principle cannot stretch 52 too far to defeat the object. On the other hand, it is to be applied in such a way to achieve the object. In support of this contention the learned counsel has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Barium Chemicals Ltd., and another V. Company Law Board and others reported in AIR1967SC295wherein it is held that, if sub delegation can be sustained if permitted by express provision or by necessary implication. But this contention of the learned counsel for respondents 2 and 3 is quite contrary to the grounds urged in these petitions filed for disqualification of the petitioners being the elected members of CMC, Sirsi, u/S31)(b) of the ‘Act’.
48. The impugned order passed by the respondent No.1 is based upon the complaint proceedings initiated against the petitioners herein being the elected members, is not justified in accepting the competency of the President, DCC, to issue whip, as it a tenor at Exs.P.11 and P.15, such as Annexures E and E1, and also on that ground disqualifying the 53 petitioners herein being the elected members of CMC, Sirsi. When the issuance of whip itself is not in accordance with law as well as on facts, it is held that the impugned order found to be not justified and it cannot be sustainable. Therefore, in view of the above said facts and peculiar circumstances of the case discussed in detail relating to evidence of P.Ws.1 to 3 and so also got marked documents as per Exs.P.1 to 24 and so also the evidence of R.W.1 and R.W.2 wherein it is produced by them relating to establishing their case as well as the allegations made in the complaint filed by the complainants 1 and 2 it is against the petitioners herein before the respondent No.1 as well as detailed objections filed by the petitioners herein discussed in detail, I am of the opinion, that the order of the respondent No.1 is not sustainable in law and also on facts which can be viewed from any angle. So also the order passed by the respondent No.1 disqualifying the petitioners herein being the elected members of the CMC, Sirsi, without considering meticulously 54 the evidence putforth by the complainant Nos.1 and 2 as well as the respondents.
49. Whereas a co-ordinate bench passed an order dated 27.04.2017 in W.P. Nos. 11335-36/2017 and the same was questioned in W.A. No.843-847/2016. In terms of the judgment dated 22.06.2016 the Writ Appeal was dismissed. Therefore, the contention taken by the learned counsel appearing for respondents 2 and 3 for referring the issue to the larger bench, does not arise since the matter has been decided in the Writ Appeal by confirming the order passed in W.P. Nos. 11335-36/2017 dated 27.04.2017. Therefore, this contention which is taken by the learned counsel for respondents 2 and 3 does not hold any substance. Similarly the concept of per-incuriam raised by the learned counsel for the respondent Nos.2 and 3 relating to the referring the aforesaid orders in the writ petitions and the same is requires to be referring the issue to the larger Bench, does not arise for consideration as the order in the aforesaid writ petitions has 55 been confirmed in the judgment passed in Writ Appeal Nos.843-847/2016, dated 22.06.2016.
50. In the instant petitions, the core issue in respect of the whip notice and so also the due service against the petitioners found to be surrounded with clouds of doubt and the same could be seen in the impugned order passed by the respondent No.1/the Deputy Commissioner, Uttara Kannada District, Karwar by casting their votes for the welfare of the society in the particular constituency and so also to the welfare of the voters by casting their votes be elected their representatives. Therefore, for the aforesaid reasons and in the facts and circumstance of the case relating to the entire evidence is to be put forth by the complainant in order to establish the allegations made against the petitioners herein being elected members appears to be camouflage such as clouds of doubt. Therefore, the order passed by the respondent No.1/the Deputy Commissioner, Uttara Kannada 56 District, Karwar is liable to be quashed. Accordingly, I pass the following: Writ petitions filed by the petitioners is hereby allowed.
ORDERThe order passed by the respondent No.1-Deputy Commissioner, Uttara Kannada District, Karwar in No.DUDC- 2:VIVA/19/2016-17 dated 24.04.2017 vide Annexure-M is hereby quashed. bvv SD/- JUDGE