Geetha Lakshmi, Mandya District. Vs. the Indian National Congress (i), Rep. by Its President and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/928838
CourtKarnataka High Court
Decided OnDec-07-2011
Case NumberWrit Appeal No. 16699 of 2011
JudgeVIKRAMAJIT SEN; A.B. BOPANNA, JJ.
Reported inILR2012KAR18; 2012(1)KCCR178(DB); 2012(1)KantLJ656(DB); 2012(1)KarLJ656
ActsKarnataka Local Authorities (Prohibition of Defection) Act, 1987 - Sections 3(1)(a)
AppellantGeetha Lakshmi, Mandya District.
RespondentThe Indian National Congress (i), Rep. by Its President and ors.
Appellant AdvocateRavivarma Kumar; A Nagarajappa & Associates, Advs.
Respondent AdvocateS. Basavaraj; B. Veerappa; R. Kothwal, Advs.
Excerpt:
[vikramajit sen; a.b. bopanna, jj.] karnataka local authorities (prohibition of defection) act, 1987 - sections 3(1)(a) -- the congress (i) party sought for disqualification of the appellant by filing a complaint before the deputy commissioner, mandya, alleging that the appellant has incurred disqualification both under sections 3(1)(a) and (b) of the act, 1987. 4. the appellant while assailing the order passed by the deputy commissioner in the writ petition before the learned single judge had contended that the whip was not validly issued as the same had not been issued by the party or under the authorisation of the party. the appellant is therefore aggrieved by the order of the learned single judge. all members belonging to the jds political party had voted for her. it is her case that mr. babu was not the official candidate of the congress party and the jds members voluntarily voted for her. the appellant, sadashiv hanmantrao patil was elected as "paksha pratod", i.e., party spokesman. this whip is signed by the appellant, sadashiv hanumantrao patil in the capacity of party leader, janta aghadi, vita. the respondent nos.1, 2 and 3 voted for the respondent no.1. during the course of hearing we asked the learned counsel for the appellant to show any resolution of janta aghadi authorising the signatories of the whip to issue the whip. parties to bear their own costs.(this writ appeal is filed u/s 4 of the karnataka high court praying to set aside the order passed in the w.p.no.22146/2011 (lb-ele) dated 29/09/2011.)the appellant herein is assailing the order dated 29.09.2011 passed by the learned single judge in w.p.no.22146/2011 (lb-ele). by the said order, the learned single judge has dismissed the petition. the consequence of such dismissal is that the order passed by the deputy commissioner dated 14.06.2011 disqualifying the appellant from the membership of the town panchayath, nagamangala, under section 3(1)(a) of the karnataka local authorities (prohibition of defection) act, 1987 (for short the act, 1987') is upheld, though the learned single judge arrives at the conclusion that the disqualification under section 3(1)(b) would not be attracted.2. heard sri ravivarma kumar, learned senior counsel for sri nagarajappa, learned counsel for the appellant and sri s. basavaraj, sri b. veerappa, additional government advocate and sri r. kothwal, respective learned counsel for respondent nos.1 to 3 and perused the appeal papers.3. the brief facts are that the appellant is an elected member from nagamangala-ii constituency, mandya district. the said constituency was reserved for sc (women). in the elections that were held on 29.08.2007, the appellant had contested as a congress (i) candidate. in the said elections, for the total of 16 members to the town panchayath, the congress (i) party secured 8 seats, while the janata dal (s) secured the remaining 8 seats. after the initial period of 20 months of the term of the first adhyaksha and upadhyaksha, the elections to he said post was once again notified on 10.08.2010. since the post of the adhyaksha was reserved for the sc category, the appellant also contested the election and was declared elected as the adhyaksha. it is from this stage, the dispute has arisen insofar as the action against the appellant has been initiated on the ground that she had contested again sri babu, who is stated to be the official candidate preferred by the congress (i) party. in the said election, the members who were elected from the janata dal (s) party, are stated to have proposed and supported the candidature of the appellant which resulted in the victory to the appellant as the adhyaksha of the town panchayath. in the election of upadhyaksha, she has voted for the janata dal (s) candidate. it is in that context. the congress (i) party sought for disqualification of the appellant by filing a complaint before the deputy commissioner, mandya, alleging that the appellant has incurred disqualification both under sections 3(1)(a) and (b) of the act, 1987. the deputy commissioner has arrived at the conclusion that the appellant had violated the whip and has also voluntarily given up the membership of the party and therefore, ordered for the disqualification.4. the appellant while assailing the order passed by the deputy commissioner in the writ petition before the learned single judge had contended that the whip was not validly issued as the same had not been issued by the party or under the authorisation of the party. the learned single judge though has upheld the said contention to the extent that the whip had not been validly issued has however proceeded further to arrive at the conclusion that the appellant had voluntarily given up her membership of the congress (i) political party to which she belonged by her conduct as she had contested against the wishes of the party and had identified herself with the janata dal (s) party. the appellant is therefore aggrieved by the order of the learned single judge.5. at the outset, the learned senior counsel for the appellant has placed strong reliance on the judgment dated 04.11.2011 passed by this bench in w.a.nos.4539-4541/2011 and connected matters-b.c. parthasarathy and others vs- deputy commissioner and others. the contention is that similar questions relating to the disqualification contemplated under sections 3(1)(a) and (b) of the act, 1987, arose for consideration and this bench has taken the view that when there is issue of an invalid whip, the disqualification does not occur and as such, it is contended that the instant facts are covered by the said judgment on all fours.6. the learned counsel for the first respondent has vehemently disputed the same and contended that the facts herein are distinct and different and sought to distinguish the judgment. the learned counsel though conceded to the position that the learned single judge has arrived at the conclusion that a valid whip had not been issued and the disqualification in the instant case is not as contemplated under section 3(1)(b) of the act, 1987 which is in conformity with the decision of this bench, it is his further contention that the conclusion that the conduct amounts to voluntarily giving up membership of party to incur disqualification under section 3(1)(a) of the act, 1987 is justified and as such, the order of the learned single judge does not call for interference. it is therefore contended that though the decision in b.c. parthasarathy's case would be relevant insofar as section 3(1)(b), it would not apply insofar as the independent finding relating to section 3(1)(a) of the act, 1987.7. having noticed the rival contentions on the preliminary issue of the applicability of the earlier decision of this bench, we are also mindful of the fact that judicial review in the present nature of the proceedings is against the order passed by the authority empowered under the statute. that being the position, the facts evolving in the case would have to be noticed. it is the well established position that the declaration of law will have to be applied keeping in view the facts in each case and not vive-versa. we have therefore heard the learned counsel appearing for the parties in further detail.8. the learned senior counsel, in order to fortify his contention referred to the order to contend that this bench after referring to the case of dr. mahachandra prasad singh vs- chairman, bihar legislative council and ors (air 2005 sc 69) and to the case of kedar shashikant deshpande etc., -vs- bhor municipal council and ors (air 2011 sc 463) now relied on by the learned counsel for the respondents and on distinguishing the same had arrived at the conclusion that the validity of the whip is to be considered and not the conduct divorced from that aspect. it is contended that in the case of b.c. parthasarathy and others, the connected appeal in w.a.nos.4536-4538/2011 related to the respondent who had contested for the post of adhyaksha and as such the decision would squarely apply.9. having decided the said case in b.c. parthasarathy and others, we are clear about the circumstance under which the question had arisen and the basis on which the said conclusion was reached. in the said case, even while invoking section 3(1)(a) in the complaint filed before the deputy commissioner, the edifice on which the case rested was about a whip being issued and the same being violated. it was contended therein that she had voluntarily given up the membership of the janata dal (s) party by violating the whip though disqualification was sought under section 3(1)(a) also. the points of dispute raised by the deputy commissioner related only to the validity of the whip. even before the learned single judge in that case, the disqualification based on conduct amounting to voluntarily giving up the membership as an independent point was not urged as seen from the order nor was it urged before us in that context. it is in that background, we had held as follows:"on the other hand, the very manner of nomination of the official candidate and the whip issued to vote in favour of the particular candidate and the validity of such whip is the question involved herein and in such context, even though violation of section 3(1)(a) is alleged, the same is in the background of the alleged violation of section 3(1)(b) of the act, 1987. in that context, the validity of the whip is to be considered and not the conduct divorced from that aspect."(emphasis presently supplied by us)10. a close perusal of the above portion of our earlier decision inb.c. parthasarathy and others on which reliance is placed would make it clear that it is not a declaration of law that in all circumstances section 3(1)(a) and (b) has to be considered as inter-dependant. but such consideration became necessary in the factual matrix and the question that arose therein for decision making. on the other hand, in contradistinction to the same, the instant facts would disclose that the foundation for considering the disqualification based on conduct amounting to voluntarily giving membership under section 3(1)(a) dehors the act of violating the whip under section 3(1)(b) was laid by the complainants in the proceedings before the deputy commissioner. this is evident from the order dated 14.06.2011 (annexure-l) wherein the deputy commissioner on summarizing the case putforth had recorded in paragraph-6 as follows:"6. thus, the case of the complainant is that the respondent has attracted the disqualification under relevant sections of the act by(a) voluntarily giving up her membership from the party to which she belongs by contesting against the official candidate of the party and(b) violating the whip by the party duly prepared and served on her. the party at any point of time had not condoned the actions of the respondent. hence, the complainant has prayed for disqualification of the respondent from the membership of the town panchayat."further, among the six points which had been raised by the deputy commissioner for consideration, the point no.4 reads as hereunder:"4. whether the respondent had indulged in an act tantamounting to voluntary giving up of membership of the party to which she belongs?"it is in that context, the learned single judge had also considered the issue in two different facets, the second being-"2) whether the petitioner has voluntarily given up her membership of the political party to which she belongs?"11. the above aspects would indicate that the decision in the case of b.c. parthasarathy and others except reinforcing the view taken by the learned single judge with regard to the whip not being valid and therefore not attracting section 3(1)(b) of the act, 1987, the same does not cover the other aspect decided by the learned single judge relating to section 3(1)(a) of the act, 1987 in the present context and the same would have to be examined by us separately as arising in the instant case.12. in the above backdrop, the manner of consideration of the said aspect by the deputy commissioner relating to the conduct of the petitioner amounting to voluntarily giving up membership resulting in the incurring of disqualification under section 3(1)(a) of the act and the review of such finding by the learned single judge requires to be adverted to.13. the deputy commissioner while considering point no.4 relating to voluntary giving up of the membership has recorded as follows:"45. this makes it clear that she was aware of the candidature of mr. babu and gopal as official congress candidates at least at the time fixed for the withdrawal of nominations. despite being given a chance to withdraw the nomination, the respondent did not do so. she wanted to contest and wait for the results. thus, it is very clear from her own admissions that she had knowingly contested against the official candidates of the party. she was further aware that she requires the support of jds members to win. precisely, this had happened during the election. all members belonging to the jds political party had voted for her. thus, it is clearly proved that the respondent had indulged in activities that had resulted in defeat of the official candidates forth (sic) fielded by the party from which she was elected as a councilor."thereafter, in the order portion has concluded thus:"having reached the conclusion that the action by the respondent amount to violation of whip and voluntary giving up of the membership of the party from which she was elected, i dr. pc jaffer, ias, deputy commissioner, mandya district, do hereby order the disqualification of mrs. geetha lakshmi from the membership of the town panchayat nagamangala with immediate effect. this order is issued with authority given to me under section 3(1)(a) and (b) of the karnataka local authorities (prohibition of defection) act 1987."14. the learned senior counsel for the appellant herein however referred to the portion recorded in para 7 of the order of the deputy commissioner wherein the contention of the appellant had been noted. with reference to the same, the learned senior counsel contended that the appellant had denied that sri babu was the official candidate and also it was contended by her that the janata dal (s) had voluntarily voted for her. it is appropriate to notice that portion of the contention as recorded in the order of the deputy commissioner, as hereunder:"7. the respondent has filed her statement of objections through her counsel. she has denied most of the allegations levelled against her. she had disputed the meeting on 13-08-2010 and decisions said to be taken in the meeting declaring the official candidates for the post of president and vice president. the respondent has questioned the maintainability of the petition on the ground that the name of the party as shown in the complaint is not in accordance with the name in records. she had further denied the whip and its service. she admitted that she had contested the election for the post the president and defeated mr. babu. it is her case that mr. babu was not the official candidate of the congress party and the jds members voluntarily voted for her. she has contended that, since there were no official candidates from both the party, the question of contesting against the official candidate of the party does not arise. thus she contended that her actions shall not attract disqualification under the act."15. as against the above noted contention which was urged, what is also to be noticed is that the parties had tendered evidence before the deputy commissioner and on analysis of the said evidence the deputy commissioner had arrived at his conclusion on the issue of voluntary giving up the membership of the party which has been extracted and noticed above. in this context, the learned single judge also having framed the second point for consideration on this aspect had referred to the evidence tendered by the parties and the relevant portion of the admissions offered by the appellant in her cross examination has received special attention. it would be appropriate for us also to notice the same and extract for easy reference."i contested for the post of president neither with any directions from the party nor from the other elected congress members on the day of the elections. there was no difficulty for me to withdraw my candidature due to the candidature of mr. babu.i knew that mr. gopal and mr. babu were the official candidates on the day of elections. i did not know that they were official candidates before i filed nomination. there was no chance of me being elected unanimously to the post of president.there was a time fixed for the withdrawal of the candidature. i knew about candidature of mr. babu and mr. gopal before the scrutiny of nominations. i have not made any effort to withdraw my nominations then. there was no difficulty in withdrawing the nominations. i wanted to wait and see the results of the contest."16. the above noted admissions which have been extracted from the appellant would indicate that the same were directed at establishing the conduct of the appellant in being a member from congress (i) and contesting against one other member of the congress (i) who had been fielded being acceptable to all the other members of the congress (i) who had been elected to the town panchayath. this is dehors the issue relating to the validity of the whip or in violation or otherwise of such whip. further, in order to notice the conduct of the appellant about going against the political party from which she was elected, the learned single judge has also referred to the voting pattern which would indicate that it was not a bonafide contest by the appellant. in this regard, as already noticed, the strength of the elected members from the congress (i) party and the janata dal (s) party was equal inasmuch as they had secured 8 seats each out of the total seats of 16. hence for the appellant to be elected, apart from her vote, all other votes were from the janata dal (s) party and the said favour has been returned by the appellant by openly declaring her support and voting in favour of the candidate set up by the janata dal (s) party for the post of upadhyaksha. keeping these aspects in view, the learned single judge arrived at the conclusion that the appellant had indulged in the conduct of giving up her membership voluntarily and incurred disqualification under section 3(1)(a) of the act.17. it is in that context, the learned counsel for the first respondent cited before us the decision of a learned single judge of the high court of kerala in the case of nazeerkhan s. vs- the kerala state election commission (air 2008 kerala 240) to contend that in similar set of circumstance, the learned judge therein had arrived at the conclusion that there would be disqualification under section 3(1)(a) of the act. in this background, the learned counsel also referred to the evidence recorded before the deputy commissioner to contend that the appellant had admitted that she was aware that sri babu had been nominated from the congress (i) party and that the members of the janata dal (s) party had supported her and all these facts has been noticed by the learned single judge in the case on hand.18. the learned senior counsel would however contend that even if there was a decision to filed some other member as a candidate, that in itself would not incur disqualification. to substantiate the said contention, the learned senior counsel referred to the decision in the case of sadashiv h. patil vs- vithal d. teke and others (air 2000 sc 3044), which we had an occasion to consider in detail while delivering the judgment in the case of b.c. parthasarathy and others. however, the context in which the same had been cited at present is to refer to the facts which were noticed therein and the conclusion reached on the aspect relating to the resolution to sponsor a particular person's candidature at the election and as to whether such resolution alone was sufficient to disqualify a member in the context of contesting in the election contrary to such resolution. the point would be more clear if the contention therein and the conclusion are extracted:"11. a meeting of janta aghadi councillors of vita municipal council was convened to take place at 4 p.m. on 16.12.1997. the appellant, sadashiv hanmantrao patil was elected as "paksha pratod", i.e., party spokesman. it is not disputed that the meeting was attended by vithal dhondiram teke, badshah akbar tamboli and smt. lakmibai waman cahothe, respondent nos. 1, 2 and 3. it was resolved that nandkumar baburao patil shall be the official candidate of janta aghadi for the post of president and the appellant. sadashiv hanmantrao patil shall fill in the nomination form as a substitute candidate. in spite of such resolution vithal dhondiram teke, respondent no.1, filed his own nomination for the post of president proposed by badshah akbar tamboli, respondent no.2 nandkumar b. patil and sadashivrao h. patil also filed their nominations as the primary and substitute candidates for the post of the president as resolved in the meeting of municipal party of janta aghadi. on 15.12.1997, two directions, popularly known in the political parlance as whip, were issued. one direction was issued to vithal dhondiram teke, respondent no.1 and badshah akbar tamboli, respondent no.2 asking them to withdraw the nomination and the proposal respectively for candidature of the respondent no.1 for the post of president as having been filed in violation of the resolution passed at the meeting of municipal party of janta aghadi. this direction bears the signatures of one hanumant rao who claims to be leader of the political party known as janta aghadi, vita. it is also signed by sadashiv patil, the appellant in the capacity of janta aghadi chief/leader of municipal party. another direction (whip) dated 15.12.1997 was issued to all the municipal councillors of janta aghadi directing them to remain present at the meeting of vita municipal council scheduled to beheld on 16.12.1997 and to cast vote in favour of the authorised candidate nominated by janta aghadi, namely, nandkumar baburao patil. this whip is signed by the appellant, sadashiv hanumantrao patil in the capacity of party leader, janta aghadi, vita. these whips were served on all the 12 councillors belonging to janta aghadi. copies of the whips were served on the sub-divisional officer who was to conduct the elections in question and were also pasted on a board placed at the entrance of the meeting hall. the validity of the nomination filed by respondent no.1 was objected to on the ground of defiance of the whips issued by janta aghadi but the objection was overruled. the election was held. nandkumar patil, the official candidate of janta aghadi received 9 votes as against 10 votes received by vithal d. teke, the respondent no.1. he was declared elected as president of the municipal council. the respondent nos.1, 2 and 3 voted for the respondent no.1. a meeting of janta aghadi was held on 19.12.1997. it was unanimously resolved not to condone the defiance of whip by respondent nos.1, 2 and 3. the appellant and two other members of janta aghadi made a reference for disqualifying respondent nos. 1, 2 and 3 from the membership of the municipal council under section 3 of the act. after affording the respondent nos.1, 2 and 3 an opportunity of hearing and holding an enquiry as contemplated by the act and the rules, the collector declared the respondent nos. 1, 2 and 3 disqualified under the provisions of the act. the three respondents preferred three writ petitions before the high court which have been heard and disposed of by a common order impugned in these appeals. the high court has allowed the writ petitions and quashed the order dated 22.6.1998 passed by the collector.""14. in civil appeal nos.6266-6268/98 no rules or regulations of janta aghadi are shown to have been filed with the collector. the record does not show that any such rules o regulations exist. had they been there an effort could have been made to find out authorisation to issue whip' having been provided therein. during the course of hearing we asked the learned counsel for the appellant to show any resolution of janta aghadi authorising the signatories of the whip to issue the whip. no such resolution was filed before the collector or the high court and not even shown to us. the contents of the whip do not also contain any recital spelling out the existence or any such authorisation which also goes to show that there was no such authorisation given. in the absence of proof of the signatories of the whip having been authorised by the janta aghadi to issue the whip the violation thereof would not attract the applicability of section 3(1)(b) of the act. may be that the party, aghadi or front had resolved to sponsor a particular persons candidature at the election. acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. but to incur disqualification under the act there must be a direction issued and such direction must be either by the party. aghadi or front to which the councilor proceeded against belongs or be by any person or authority authorised in this behalf. mere resolution is not a substitute for direction. on this single ground alone the judgment of the high court deserves to be maintained."19. there can be no second opinion with regard to the view taken therein by the hon'ble supreme court and the said view has been followed by us while deciding the case in b.c. parthasarathy and others. it was even earlier relied on in nijnagouda vs. the state election commissioner and ors (w.a.no.910/2008 dd 19.12.2008) which was the basis for our earlier decision. however, the decision in sadashiv patil was in the context of considering the validity of the whip under section 3(1)(b) of the act and the consequent disqualification or otherwise thereto. it would have also been relevant if the conduct of voluntary giving up of membership was relatable to the violation of the whip alone. as already discussed elaborately in the preceding paragraphs, the instant case has proceeded also on the conduct of the appellant dehors the violation of whip and as such the said decision would not be of assistance to decide the instant facts.20. in fact, in the instant facts, the decision of the hon'ble supreme court in the case of ravi s. naik vs. union of india and ors (air 1994 sc 1558) and in the case of dr. mahachandra prasad singh vs. chairman, bihar legislative council and ors (air 2005 sc 69) would be more apposite. in the said cases the hon'ble supreme court while considering the provision regarding disqualification of elected representative based on the conduct of voluntarily giving up the membership as provided under schedule x to the constitution of india had the occasion to refer to the circumstances under which the conduct would amount to voluntarily giving up the membership of the political party from which a member was elected earlier, even without there being formal application for joining another party and had laid down the law that such conduct would attract disqualification. in the case in hand, we have referred to in detail with regard to the conduct of the appellant which amounts to voluntarily giving up the membership while referring to the evidence noticed by the deputy commissioner and the learned single judge as also the reasons assigned thereto. keeping in view the composition of the town panchayath consisting of equal number of elected members from two different political parties, the conduct of the appellant against her own political party from which she was elected has to be considered as brazen. if such conduct is overlooked and treated leniently, the same would amount to rendering the act 1987, more particularly section 3(1)(a) of the act otiose.21. hence, in the facts and circumstances of the case, we see no error committed by the learned single judge so as to call for interference at our hands. the appeal is therefore devoid of merit.the appeal is accordingly dismissed. parties to bear their own costs.
Judgment:

(This Writ Appeal is filed u/s 4 of the Karnataka High Court praying to set aside the order passed in the W.P.No.22146/2011 (LB-ELE) dated 29/09/2011.)The appellant herein is assailing the order dated 29.09.2011 passed by the learned Single Judge in W.P.No.22146/2011 (LB-ELE). By the said order, the learned Single Judge has dismissed the petition. The consequence of such dismissal is that the order passed by the Deputy Commissioner dated 14.06.2011 disqualifying the appellant from the membership of the town Panchayath, Nagamangala, under Section 3(1)(a) of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short the Act, 1987') is upheld, though the learned Single Judge arrives at the conclusion that the disqualification under Section 3(1)(b) would not be attracted.

2. Heard Sri Ravivarma Kumar, learned senior counsel for Sri Nagarajappa, learned counsel for the appellant and Sri S. Basavaraj, Sri B. Veerappa, Additional Government Advocate and Sri R. Kothwal, respective learned counsel for respondent Nos.1 to 3 and perused the appeal papers.

3. The brief facts are that the appellant is an elected member from Nagamangala-II constituency, Mandya District. The said constituency was reserved for SC (Women). In the elections that were held on 29.08.2007, the appellant had contested as a Congress (I) candidate. In the said elections, for the total of 16 members to the Town Panchayath, the Congress (I) party secured 8 seats, while the Janata Dal (S) secured the remaining 8 seats. After the initial period of 20 months of the term of the first Adhyaksha and Upadhyaksha, the elections to he said post was once again notified on 10.08.2010. Since the post of the Adhyaksha was reserved for the SC category, the appellant also contested the election and was declared elected as the Adhyaksha. It is from this stage, the dispute has arisen insofar as the action against the appellant has been initiated on the ground that she had contested again Sri Babu, who is stated to be the official candidate preferred by the Congress (I) party. In the said election, the members who were elected from the Janata Dal (S) party, are stated to have proposed and supported the candidature of the appellant which resulted in the victory to the appellant as the Adhyaksha of the Town Panchayath. In the election of Upadhyaksha, she has voted for the Janata Dal (S) candidate. It is in that context. The Congress (I) party sought for disqualification of the appellant by filing a complaint before the Deputy Commissioner, Mandya, alleging that the appellant has incurred disqualification both under Sections 3(1)(a) and (b) of the Act, 1987. The Deputy Commissioner has arrived at the conclusion that the appellant had violated the whip and has also voluntarily given up the membership of the party and therefore, ordered for the disqualification.

4. The appellant while assailing the order passed by the Deputy Commissioner in the writ petition before the learned Single Judge had contended that the whip was not validly issued as the same had not been issued by the party or under the authorisation of the party. The learned Single Judge though has upheld the said contention to the extent that the whip had not been validly issued has however proceeded further to arrive at the conclusion that the appellant had voluntarily given up her membership of the Congress (I) political party to which she belonged by her conduct as she had contested against the wishes of the party and had identified herself with the Janata Dal (S) Party. The appellant is therefore aggrieved by the order of the learned Single Judge.

5. At the outset, the learned senior counsel for the appellant has placed strong reliance on the judgment dated 04.11.2011 passed by this Bench in W.A.Nos.4539-4541/2011 and connected matters-B.C. Parthasarathy and Others vs- Deputy Commissioner and Others. The contention is that similar questions relating to the disqualification contemplated under Sections 3(1)(a) and (b) of the Act, 1987, arose for consideration and this Bench has taken the view that when there is issue of an invalid whip, the disqualification does not occur and as such, it is contended that the instant facts are covered by the said judgment on all fours.

6. The learned counsel for the first respondent has vehemently disputed the same and contended that the facts herein are distinct and different and sought to distinguish the judgment. The learned counsel though conceded to the position that the learned Single Judge has arrived at the conclusion that a valid whip had not been issued and the disqualification in the instant case is not as contemplated under Section 3(1)(b) of the Act, 1987 which is in conformity with the decision of this Bench, it is his further contention that the conclusion that the conduct amounts to voluntarily giving up membership of party to incur disqualification under Section 3(1)(a) of the Act, 1987 is justified and as such, the order of the learned Single Judge does not call for interference. It is therefore contended that though the decision in B.C. Parthasarathy's case would be relevant insofar as Section 3(1)(b), it would not apply insofar as the independent finding relating to Section 3(1)(a) of the Act, 1987.

7. Having noticed the rival contentions on the preliminary issue of the applicability of the earlier decision of this Bench, we are also mindful of the fact that judicial review in the present nature of the proceedings is against the order passed by the Authority empowered under the statute. That being the position, the facts evolving in the case would have to be noticed. It is the well established position that the declaration of law will have to be applied keeping in view the facts in each case and not vive-versa. We have therefore heard the learned counsel appearing for the parties in further detail.

8. The learned Senior counsel, in order to fortify his contention referred to the order to contend that this Bench after referring to the case of Dr. Mahachandra Prasad Singh vs- Chairman, Bihar Legislative Council and ors (AIR 2005 SC 69) and to the case of Kedar Shashikant Deshpande etc., -vs- Bhor Municipal Council and Ors (AIR 2011 SC 463) now relied on by the learned counsel for the respondents and on distinguishing the same had arrived at the conclusion that the validity of the whip is to be considered and not the conduct divorced from that aspect. It is contended that in the case of B.C. Parthasarathy and others, the connected appeal in W.A.Nos.4536-4538/2011 related to the respondent who had contested for the post of Adhyaksha and as such the decision would squarely apply.

9. Having decided the said case in B.C. Parthasarathy and others, we are clear about the circumstance under which the question had arisen and the basis on which the said conclusion was reached. In the said case, even while invoking Section 3(1)(a) in the complaint filed before the Deputy Commissioner, the edifice on which the case rested was about a whip being issued and the same being violated. It was contended therein that she had voluntarily given up the membership of the Janata Dal (S) Party by violating the whip though disqualification was sought under Section 3(1)(a) also. The points of dispute raised by the Deputy Commissioner related only to the validity of the whip. Even before the learned Single Judge in that case, the disqualification based on conduct amounting to voluntarily giving up the membership as an independent point was not urged as seen from the order nor was it urged before us in that context. It is in that background, we had held as follows:

"On the other hand, the very manner of nomination of the official candidate and the whip issued to vote in favour of the particular candidate and the validity of such whip is the question involved herein and in such context, even though violation of Section 3(1)(a) is alleged, the same is in the background of the alleged violation of Section 3(1)(b) of the Act, 1987. In that context, the validity of the whip is to be considered and not the conduct divorced from that aspect."

(Emphasis presently supplied by us)

10. A close perusal of the above portion of our earlier decision inB.C. Parthasarathy and others on which reliance is placed would make it clear that it is not a declaration of law that in all circumstances Section 3(1)(a) and (b) has to be considered as inter-dependant. But such consideration became necessary in the factual matrix and the question that arose therein for decision making. On the other hand, in contradistinction to the same, the instant facts would disclose that the foundation for considering the disqualification based on conduct amounting to voluntarily giving membership under Section 3(1)(a) dehors the act of violating the whip under Section 3(1)(b) was laid by the complainants in the proceedings before the Deputy Commissioner. This is evident from the order dated 14.06.2011 (Annexure-L) wherein the Deputy Commissioner on summarizing the case putforth had recorded in paragraph-6 as follows:

"6. Thus, the case of the Complainant is that the respondent has attracted the disqualification under relevant sections of the Act by

(a) Voluntarily giving up her membership from the party to which she belongs by contesting against the official candidate of the party and

(b) Violating the whip by the party duly prepared and served on her. The party at any point of time had not condoned the actions of the respondent. Hence, the complainant has prayed for disqualification of the respondent from the membership of the Town Panchayat."

Further, among the six points which had been raised by the Deputy Commissioner for consideration, the point No.4 reads as hereunder:

"4. Whether the respondent had indulged in an act tantamounting to voluntary giving up of membership of the party to which she belongs?"

It is in that context, the learned Single Judge had also considered the issue in two different facets, the second being-

"2) Whether the petitioner has voluntarily given up her membership of the political party to which she belongs?"

11. The above aspects would indicate that the decision in the case of B.C. Parthasarathy and others except reinforcing the view taken by the learned Single Judge with regard to the whip not being valid and therefore not attracting Section 3(1)(b) of the Act, 1987, the same does not cover the other aspect decided by the learned Single Judge relating to Section 3(1)(a) of the Act, 1987 in the present context and the same would have to be examined by us separately as arising in the instant case.

12. In the above backdrop, the manner of consideration of the said aspect by the Deputy Commissioner relating to the conduct of the petitioner amounting to voluntarily giving up membership resulting in the incurring of disqualification under Section 3(1)(a) of the Act and the review of such finding by the learned Single Judge requires to be adverted to.

13. The Deputy Commissioner while considering Point No.4 relating to voluntary giving up of the membership has recorded as follows:

"45. This makes it clear that she was aware of the candidature of Mr. Babu and Gopal as official Congress candidates at least at the time fixed for the withdrawal of nominations. Despite being given a chance to withdraw the nomination, the respondent did not do so. She wanted to contest and wait for the results. Thus, it is very clear from her own admissions that she had knowingly contested against the official candidates of the party. She was further aware that she requires the support of JDS members to win. Precisely, this had happened during the election. All members belonging to the JDS political party had voted for her. Thus, it is clearly proved that the respondent had indulged in activities that had resulted in defeat of the official candidates forth (sic) fielded by the party from which she was elected as a councilor."

Thereafter, in the order portion has concluded thus:

"Having reached the conclusion that the action by the respondent amount to violation of whip and voluntary giving up of the membership of the party from which she was elected, I Dr. PC Jaffer, IAS, Deputy Commissioner, Mandya District, do hereby order the disqualification of Mrs. Geetha Lakshmi from the membership of the Town Panchayat Nagamangala with immediate effect. This order is issued with authority given to me under Section 3(1)(a) and (b) of the Karnataka Local Authorities (Prohibition of Defection) Act 1987."

14. The learned senior counsel for the appellant herein however referred to the portion recorded in para 7 of the order of the Deputy Commissioner wherein the contention of the appellant had been noted. With reference to the same, the learned senior counsel contended that the appellant had denied that Sri Babu was the official candidate and also it was contended by her that the Janata Dal (S) had voluntarily voted for her. It is appropriate to notice that portion of the contention as recorded in the order of the Deputy Commissioner, as hereunder:

"7. The respondent has filed her statement of objections through her counsel. She has denied most of the allegations levelled against her. She had disputed the meeting on 13-08-2010 and decisions said to be taken in the meeting declaring the official candidates for the post of president and vice president. The respondent has questioned the maintainability of the petition on the ground that the name of the party as shown in the complaint is not in accordance with the name in records. She had further denied the whip and its service. She admitted that she had contested the election for the post the president and defeated Mr. Babu. It is her case that Mr. Babu was not the official candidate of the Congress party and the JDS members voluntarily voted for her. She has contended that, since there were no official candidates from both the party, the question of contesting against the official candidate of the party does not arise. Thus she contended that her actions shall not attract disqualification under the Act."

15. As against the above noted contention which was urged, what is also to be noticed is that the parties had tendered evidence before the Deputy Commissioner and on analysis of the said evidence the Deputy Commissioner had arrived at his conclusion on the issue of voluntary giving up the membership of the party which has been extracted and noticed above. In this context, the learned Single Judge also having framed the second point for consideration on this aspect had referred to the evidence tendered by the parties and the relevant portion of the admissions offered by the appellant in her cross examination has received special attention. It would be appropriate for us also to notice the same and extract for easy reference.

"I contested for the post of President neither with any directions from the party nor from the other elected congress members on the day of the elections. There was no difficulty for me to withdraw my candidature due to the candidature of Mr. Babu.

I knew that Mr. Gopal and Mr. Babu were the official candidates on the day of elections. I did not know that they were official candidates before I filed nomination. There was no chance of me being elected unanimously to the post of President.

There was a time fixed for the withdrawal of the candidature. I knew about candidature of Mr. Babu and Mr. Gopal before the scrutiny of nominations. I have not made any effort to withdraw my nominations then. There was no difficulty in withdrawing the nominations. I wanted to wait and see the results of the contest."

16. The above noted admissions which have been extracted from the appellant would indicate that the same were directed at establishing the conduct of the appellant in being a member from Congress (I) and contesting against one other member of the Congress (I) who had been fielded being acceptable to all the other members of the Congress (I) who had been elected to the Town Panchayath. This is dehors the issue relating to the validity of the whip or in violation or otherwise of such whip. Further, in order to notice the conduct of the appellant about going against the political party from which she was elected, the learned Single Judge has also referred to the voting pattern which would indicate that it was not a bonafide contest by the appellant. In this regard, as already noticed, the strength of the elected members from the Congress (I) party and the Janata Dal (S) party was equal inasmuch as they had secured 8 seats each out of the total seats of 16. Hence for the appellant to be elected, apart from her vote, all other votes were from the Janata Dal (S) party and the said favour has been returned by the appellant by openly declaring her support and voting in favour of the candidate set up by the Janata Dal (S) party for the post of Upadhyaksha. Keeping these aspects in view, the learned Single Judge arrived at the conclusion that the appellant had indulged in the conduct of giving up her membership voluntarily and incurred disqualification under Section 3(1)(a) of the Act.

17. It is in that context, the learned counsel for the first respondent cited before us the decision of a learned Single Judge of the High Court of Kerala in the case of Nazeerkhan S. vs- The Kerala State Election Commission (AIR 2008 Kerala 240) to contend that in similar set of circumstance, the learned Judge therein had arrived at the conclusion that there would be disqualification under Section 3(1)(a) of the Act. In this background, the learned counsel also referred to the evidence recorded before the Deputy Commissioner to contend that the appellant had admitted that she was aware that Sri Babu had been nominated from the Congress (I) party and that the members of the Janata Dal (S) party had supported her and all these facts has been noticed by the learned Single Judge in the case on hand.

18. The learned senior counsel would however contend that even if there was a decision to filed some other member as a candidate, that in itself would not incur disqualification. To substantiate the said contention, the learned senior counsel referred to the decision in the case of Sadashiv H. Patil vs- Vithal D. Teke and Others (AIR 2000 SC 3044), which we had an occasion to consider in detail while delivering the judgment in the case of B.C. Parthasarathy and others. However, the context in which the same had been cited at present is to refer to the facts which were noticed therein and the conclusion reached on the aspect relating to the resolution to sponsor a particular person's candidature at the election and as to whether such resolution alone was sufficient to disqualify a member in the context of contesting in the election contrary to such resolution. The point would be more clear if the contention therein and the conclusion are extracted:

"11. A meeting of Janta Aghadi Councillors of Vita Municipal Council was convened to take place at 4 p.m. on 16.12.1997. The appellant, Sadashiv Hanmantrao Patil was elected as "Paksha Pratod", i.e., Party Spokesman. It is not disputed that the meeting was attended by Vithal Dhondiram Teke, Badshah Akbar Tamboli and Smt. Lakmibai Waman Cahothe, respondent nos. 1, 2 and 3. It was resolved that Nandkumar Baburao Patil shall be the official candidate of Janta Aghadi for the post of President and the appellant. Sadashiv Hanmantrao Patil shall fill in the nomination form as a substitute candidate. In spite of such resolution Vithal Dhondiram Teke, respondent No.1, filed his own nomination for the post of President proposed by Badshah Akbar Tamboli, respondent no.2 Nandkumar B. Patil and Sadashivrao H. Patil also filed their nominations as the primary and substitute candidates for the post of the President as resolved in the meeting of Municipal Party of Janta Aghadi. On 15.12.1997, two directions, popularly known in the political parlance as whip, were issued. One direction was issued to Vithal Dhondiram Teke, respondent no.1 and Badshah Akbar Tamboli, respondent no.2 asking them to withdraw the nomination and the proposal respectively for candidature of the respondent no.1 for the post of President as having been filed in violation of the resolution passed at the meeting of Municipal Party of Janta Aghadi. This direction bears the signatures of one Hanumant Rao who claims to be leader of the political party known as Janta Aghadi, Vita. It is also signed by Sadashiv Patil, the appellant in the capacity of Janta Aghadi Chief/Leader of Municipal Party. Another direction (whip) dated 15.12.1997 was issued to all the Municipal Councillors of Janta Aghadi directing them to remain present at the meeting of Vita Municipal Council scheduled to beheld on 16.12.1997 and to cast vote in favour of the authorised candidate nominated by Janta Aghadi, namely, Nandkumar Baburao Patil. This whip is signed by the appellant, Sadashiv Hanumantrao Patil in the capacity of party leader, Janta Aghadi, Vita. These whips were served on all the 12 Councillors belonging to Janta Aghadi. Copies of the whips were served on the Sub-Divisional Officer who was to conduct the elections in question and were also pasted on a Board placed at the entrance of the meeting hall. The validity of the nomination filed by respondent no.1 was objected to on the ground of defiance of the whips issued by Janta Aghadi but the objection was overruled. The election was held. Nandkumar Patil, the official candidate of Janta Aghadi received 9 votes as against 10 votes received by Vithal D. Teke, the respondent no.1. He was declared elected as President of the Municipal Council. The respondent nos.1, 2 and 3 voted for the respondent no.1. A meeting of Janta Aghadi was held on 19.12.1997. It was unanimously resolved not to condone the defiance of whip by respondent nos.1, 2 and 3. The appellant and two other members of Janta Aghadi made a reference for disqualifying respondent nos. 1, 2 and 3 from the membership of the Municipal Council under Section 3 of the Act. After affording the respondent nos.1, 2 and 3 an opportunity of hearing and holding an enquiry as contemplated by the Act and the Rules, the Collector declared the respondent nos. 1, 2 and 3 disqualified under the provisions of the Act. The three respondents preferred three writ petitions before the High Court which have been heard and disposed of by a common order impugned in these appeals. The High Court has allowed the writ petitions and quashed the order dated 22.6.1998 passed by the Collector."

"14. In Civil Appeal Nos.6266-6268/98 no rules or regulations of Janta Aghadi are shown to have been filed with the Collector. The record does not show that any such rules o regulations exist. Had they been there an effort could have been made to find out authorisation to issue whip' having been provided therein. During the course of hearing we asked the learned counsel for the appellant to show any resolution of Janta Aghadi authorising the signatories of the whip to issue the whip. No such resolution was filed before the Collector or the High Court and not even shown to us. The contents of the whip do not also contain any recital spelling out the existence or any such authorisation which also goes to show that there was no such authorisation given. In the absence of proof of the signatories of the whip having been authorised by the Janta Aghadi to issue the whip the violation thereof would not attract the applicability of Section 3(1)(b) of the Act. May be that the party, Aghadi or front had resolved to sponsor a particular persons candidature at the election. Acting contrary to such resolution, howsoever strongly worded, may render its member liable to disciplinary proceedings at the party level. But to incur disqualification under the Act there must be a direction issued and such direction must be either by the party. Aghadi or front to which the Councilor proceeded against belongs or be by any person or authority authorised in this behalf. Mere resolution is not a substitute for direction. On this single ground alone the judgment of the High Court deserves to be maintained."

19. There can be no second opinion with regard to the view taken therein by the Hon'ble Supreme Court and the said view has been followed by us while deciding the case in B.C. Parthasarathy and others. It was even earlier relied on in Nijnagouda vs. The State Election Commissioner and Ors (W.A.No.910/2008 DD 19.12.2008) which was the basis for our earlier decision. However, the decision in Sadashiv Patil was in the context of considering the validity of the whip under Section 3(1)(b) of the Act and the consequent disqualification or otherwise thereto. It would have also been relevant if the conduct of voluntary giving up of membership was relatable to the violation of the whip alone. As already discussed elaborately in the preceding paragraphs, the instant case has proceeded also on the conduct of the appellant dehors the violation of whip and as such the said decision would not be of assistance to decide the instant facts.

20. In fact, in the instant facts, the decision of the Hon'ble Supreme Court in the case of Ravi S. Naik vs. Union of India and ors (AIR 1994 SC 1558) and in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council and ors (AIR 2005 SC 69) would be more apposite. In the said cases the Hon'ble Supreme Court while considering the provision regarding disqualification of elected representative based on the conduct of voluntarily giving up the membership as provided under Schedule X to the Constitution of India had the occasion to refer to the circumstances under which the conduct would amount to voluntarily giving up the membership of the political party from which a member was elected earlier, even without there being formal application for joining another party and had laid down the law that such conduct would attract disqualification. In the case in hand, we have referred to in detail with regard to the conduct of the appellant which amounts to voluntarily giving up the membership while referring to the evidence noticed by the Deputy Commissioner and the learned Single Judge as also the reasons assigned thereto. Keeping in view the composition of the Town Panchayath consisting of equal number of elected members from two different political parties, the conduct of the appellant against her own political party from which she was elected has to be considered as brazen. If such conduct is overlooked and treated leniently, the same would amount to rendering the Act 1987, more particularly Section 3(1)(a) of the Act otiose.

21. Hence, in the facts and circumstances of the case, we see no error committed by the learned Single Judge so as to call for interference at our hands. The appeal is therefore devoid of merit.

The appeal is accordingly dismissed. Parties to bear their own costs.