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Judgment
B. Veerappa, J.—1. The petitioners in the above writ petition sought a writ in the nature of certiorari to quash the impugned order dated 02.01.2016 passed by the 1st respondent on the Misc. Application filed by the petitioners vide Annexure J and also sought for a writ of mandamus directing the 1st respondent to transfer the petition bearing No. NamPuSaChu.Vahi No. 5/2015-16 pending on the file of the 2nd respondent - Deputy Commissioner, Haven, to any other Office of the Deputy Commissioner, Belgaum Zone in the interest of justice.
It is the case of the petitioners that the 1st petitioner is elected President of CMC, Haven and the 2nd petitioner is the Vice President and petitioner Nos. 3 to 7 are the Members of CMC Haven and one Imam Jaffarkhan Usmankhan Pathan was Ex-President of the Municipal Council and he was removed from the office of the President by passing ''No Confidence Motion'' on 16.07.2015 by 2/3rd majority. Thereafter on 10.08.2015 respondent Nos. 3 and 4 have initiated disqualification of membership proceedings against the petitioners for violating the party whip under the provisions of Sections 3(1)(b) and 4 of the Karnataka Local Authorities (Prohibition of Defection Act, 1987). It is the further case of the petitioners that on 14.08.2015 the 1st respondent issued notice to them. Accordingly they appeared through their counsel on 26.08.2015. Thereafter petitioners filed I.A. No. 2 under Order 1 Rule 10 of CPC praying to delete respondent No. 4 as he was improperly joined in the disqualification application, the said application is still pending. On 3.09.2015 respondent Nos. 3 and 4 filed memo for producing a document namely party authorization issued to respondent No. 3 authorizing him to issue whip to the councilors elected from congress party. The matter was adjourned for filing objections to the main petition and also to the memo for production of documents.
On 10.09.2015 the 2nd respondent - Deputy Commissioner was on leave and the case was adjourned to 25.09.2015 as there was transfer of Deputy Commissioners, the present Deputy Commissioner assumed the office and took up the case on 14.10.2015 and on that day the petitioners filed objections to the documents produced on 3.09.2015. The same was not accepted stating that any objections or further clarification will be considered along with the written statement to be filed on 17.10.2015 and the case was straight away adjourned to 29.10.2015 for recording witnesses evidence.
It is the further case of the petitioners that on 17.10.2015 the Advocate for the petitioners appeared before the Deputy Commissioner filed his objections. The Deputy Commissioner accepted the objections. However, he refused to record the same in the order sheet. The counsel for the petitioners also requested the Deputy Commissioner to accept the objections to the memo for production of document, the same was not accepted as the specific case of the petitioners was that there is no valid authorization to issue whip to respondent No. 3 and the same was concocted document as neither original nor certified copy is produced before the Deputy Commissioner. Therefore request was made at least to accept the objections, which became part of the records, but was not received. The Deputy Commissioner did not note down in the order sheet regarding filing of written statement and he refused to receive the objections to the memo and the case was called on 29.10.2015. The petitioners apprehend that the Deputy Commissioner has not considered the case of the petitioners in a fair and partial manner and the attitude being one sided, the petitioners were left with no other alternative except to seek transfer of the case from the office of Deputy Commissioner, Haven to any other office of the Deputy Commissioner which falls within the jurisdiction of Regional Commissioner in terms of the provisions of Section 27(1)(a) of the Karnataka Land Revenue Act, 1964. Thereafter 1st respondent did not consider the application for stay filed by the petitioners, therefore they filed W.P. Nos. 113053-113059/2015 before this Court and writ petition came to be disposed of with a direction to the 1st respondent to pass orders on the transfer petition within one month and the benefit of stay was extended till the disposal of the Transfer Petition by the Regional Commissioner passed to consider and pass orders, since the said petition was pending since 30.11.2015.
It is the further case of the petitioners that 1st respondent without considering the grievance of the petitioners and without taking into account the documents has passed the impugned order dated 2.01.2016 which is not a speaking order rejecting the application for transfer. Therefore the petitioners are before this Court seeking for transfer of their petition.
Respondent Nos. 3 and 4 are the complainants, who have filed the objections in the present writ petitions and the substance of the objections filed by respondent Nos. 3 and 4 in the petition is that the application filed before the 1st respondent - Regional Commissioner for transfer of the case from the present Deputy Commissioner to another Deputy Commissioner is without any basis. Therefore, they sought for dismissal of the writ petitions.
I have heard the learned counsel for the parties to the lis.
Sri F.V. Patil, learned counsel for the petitioners contended that the impugned order passed by the 1st respondent - Regional Commissioner is not a speaking order and the order sheet maintained in the Office of the Deputy Commissioner clearly depicts that the proceedings is not conducted in a fair and impartial manner. Respondent No. 5 and respondent No. 6 herein - Imam Jaffarkhan Usmankhan Pathan, who was the Ex-President have met respondent No. 2 on 13.10.2015 and 17.10.2015 and the same is recorded in CCTV Footage, which was not furnished to the petitioners in spite of making an application and the petitioners have every apprehension that the Deputy Commissioner is not considering the case in a fair and impartial manner. Therefore, the petitioners herein are seeking transfer of petition from the present Deputy Commissioner to another Deputy Commissioner. The 1st respondent without considering the specific plea made and without considering the documents has proceeded to pass the impugned order, which is not a speaking order, erroneous and contrary to the record. Therefore, he sought to quash the impugned order Annexure-J with a direction to the 1st respondent to transfer the case which is pending before the 2nd respondent - Deputy Commissioner to any other Deputy Commissioner.
Per contra, Sri K.S. Patil, learned Government Pleader on instructions submitted that the Deputy Commissioner is impartial, he is not biased either against the petitioners or the respondents. He took charge only from September 2015, but the allegation made in the petition before the 1st respondent - Regional Commissioner is without any basis and he therefore, sought for dismissal of the writ petitions.
Sri AS. Patil, learned counsel, Sri. D.V. Pattar and Sri Batakurki, learned counsel for respondent Nos. 3 to 6 sought to justify the impugned action. They further contended that under the provisions of Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987, the dispute between the parties is to be decided within a period 60 days from the date of filing the application but because of delayed tactics adopted by the petitioners, now it is not permissible to transfer the petition from one Deputy Commissioner to another Deputy Commissioner, therefore, sought for dismissal of the petitions.
I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
It is not in dispute that disqualification proceedings is pending before the Deputy Commissioner in petition bearing No. NamPuSaChu.Vahi No. 5/2015-1026 and there are serious allegations made by the petitioners against the Deputy Commissioner for not conducting the case pending before him in a fair and impartial manner. Therefore, the petitioners have filed the above petitions before this Court seeking transfer of petition No. 5/2015-16 from one Deputy Commissioner to another Deputy Commissioner. The 1st petitioner - Manjunath alias Ganesh S/o. Tirakappa Bistannavar and others have filed the above petitions before this Court on 5.01.2016 seeking transfer reiterating the allegations made in the writ petitions and contended that in view of the several adjournments granted by the Deputy Commissioner and the dragging of proceedings clearly indicates that he has not conducted the case in a fair and impartial manner, the petitioners apprehend that they will not get justice in the hands of the present Deputy Commissioner. The said allegations are denied by the respondents. The respondents have filed a detailed statement of objections before this Court.
The Regional Commissioner though reiterated the allegations made in the application and in the objections filed before him, he has not discussed in detail and no reference is made in the operative portion of his order dated 2.01.2016. He only stated that after considering the written arguments filed by both the parties and after considering the material documents produced before him, he has proceeded to pass the impugned order, but in fact he has not recorded any finding in response to the allegations made and he only stated that after considering the written arguments and after perusing the documents, he came to the conclusion that there is no truth in the allegations made. Accordingly, the Regional Commissioner rejected the application. Except the said finding he has not referred to what are the submissions made by both the parties and what are the documents produced to prove the allegations and counter allegations and what is the response is not forthcoming in the impugned order. The Regional Commissioner has not passed a speaking order giving all the details and under what circumstances the application of the petitioners made under the provisions of Section 27(1-A) of the Act, came to be rejected by the Regional Commissioner, on an application made to him in this behalf to meet the ends of justice for transfer of case/cases from one Revenue Officer to any other Revenue Officer. He has not assigned any valid reasons, how the application for transfer is not maintainable in the absence of any specific finding, allegations and counter allegations made by both the parties. The impugned order is contrary to very intention of the legislation while enacting Section 27(1A) of the Act. Therefore the matter requires reconsideration by the 1st respondent afresh.
In view of the aforesaid reasons, writ petitions are allowed. the impugned order dated 02.1.2016 passed by the 1st respondent vide Annexure -J is quashed. The matter is remanded to the 1st respondent - Regional Commissioner to reconsider afresh after giving opportunity to all the parties and after getting the reply from the present Deputy Commissioner, pass appropriate orders in accordance with law, within a period of two weeks from the date of receipt of a copy of this order. All the parties to the lis are directed to appear before the Regional Commissioner on 2.3.2016 and the parties shall co-operate with the 1st respondent to dispose of the petition within the stipulated time in accordance with law.
In view of the disposal of the main petitions itself, the question of considering the interim application does not arise.