Purushothama vs S.M. Nandakumar and Others

Manjunath, J.—By consent, these appeals are heard together. The legality and correctness of the order passed in W.P.No.12926-30/11 dt.20.4.2011 is called in question by the appellant.

Heard Mr. B.K. Sampath Kumar, learned counsel for the appellant, Sri. Jayakumar S. Patil, Senior counsel appearing for respondents-1 to 5 and Sri. Subramanya who is appearing for the 1st respondent in the connected appeal and Govt. Advocate for the respondent No.6 and learned counsel for respondent-7

The facts leading to these appeals are as hereunder:

The appellant and respondents-1 to 5 and also respondent-1 in the connected appeal are Corporators of City Municipal Corporation, Mysore and they were got elected on the ticket of the Congress Party on 29.10.2007. A complaint was lodged by the appellant stating that he sponsored by the Congress party as candidate for Mayor for the year 2009-10. inspite of a whip issued by the Party President of the District Congress, Mysore, respondents did not participate in the meeting with a view to see that the appellant shall not get elected as Mayor. inspite of their absence, the appellant was got selected as Mayor in the election held on 19.2.2009. On the ground that there is a gross violation of the whip issued by the party, a petition was filed before the Regional Commissioner, Mysore in Election Appeal No. CR 1/2010-11 to take action against the six Corporators who did not participate in the Meeting and did not vote in favour of the appellant.

The respondents appeared before the Regional Commissioner. Their main objections were that whip was not served on them and that they were not allowed to enter in the Meeting hall due to confusion and commotion by the Party workers as such they could not exercise their vote in favour of the congress candidate. Therefore, it was contended by them that they have not vioi6ted the alleged whip said to have been issued by the party. In order to prove their contentions, the appellant got himself examined as PW1 and thereafter one Dasegowda, President of District Congress Committee, Mysore was examined as PW2. After he was cross-examined one of the respondents, namely, Smt. Nigara Sultana - respondent-3 in the first appeal filed objections stating that the whip said to have been issued by the President was without authority of law and the same cannot be considered as a whip in the eye of law and therefore it was contended by her that the petition filed by the appellant before the Regional commissioner was not maintainable. After recording the evidence of all the parties, the Regional Commissioner by her order dt.21.3.2011 held that the respondents-1 to 6 were aware of the whip issued by the party and did not participate in the meeting scheduled on 19.2.2009 and further held that the absence of the respondents was only to allow the opposite party candidate to get elected and there is a violation of section 3(1)(b) or the Karnataka Local Authorities (Prohibition of Defection)Act, 1987.

Aggrieved by the order of the Regional Commissioner, the Writ Petition was filed by respondents-1 to 6. The learned Single Judge after hearing the Writ Petitioners was of the opinion that the Regional Commissioner did not consider the important question of law, i.e. whether the whip issued by the person had authority to issue a whip and such whip is legal in the eye of law. The court held that due to non-application of mind by the Regional Commissioner, the order has to be set aside, accordingly impugned order was set aside. Challenging the same, the present appeal is filed.

Mr. Sampath Kumar, learned counsel for the appellant contends that except 3rd respondent - Nigara Sultana, remaining respondents did not raise the contention of validity of the whip issued by the President of Mysore District Congress committee. According to him, even the 3rd respondent - Nigara Sultana raised an objection in half-hearted manner after the President of Mysore Dist. Congress Committee was examined as PW2 and cross examined. It is also his case that by filing an objection on 23.8.2010 on the same day she was examined-in-chief and therefore there was no opportunity for the appellant to call Dasegowda, the President who had issued the whip to show that he was authorised to issue whip and whip issued by him was legal and binding on the respondents. According to him, the learned Single Judge did not consider this important question. According to him, the Regional Commissioner has also committed an error in receiving the objections filed by the 3rd respondent on 23.8.2010 after completion of evidence of the appellant. When an opportunity granted to the 3rd respondent to file objection, was not made use of the same, in all fairness the Regional Commissioner could not have received the objection statement filed belatedly and even if such objections had been received, it was the duty of the Regional Commissioner to give an opportunity for the appellant to lead further evidence based on the objections filed by the 3rd respondent. Therefore, he contends that the learned Single Judge atleast should have remanded the matter to the Regional Commissioner for fresh consideration to prove the validity of the whip issued by PW2. In addition to that he also contends that before this court he has filed an application to produce additional evidence, i.e, the Resolution passed by the Karnataka Pradesh congress Committee on 10.1.2004 authorising District President to issue whip and relying upon Annexure-R5 he requests the court to remand the matter to reconsider the issue afresh by the Regional Commissioner.

Per contra, Mr. Jayakumar S. Patil. as well as Mr. Subramanya, learned counsel appearing for the respondents contend that the learned Single Judge justified in allowing the Writ Petition because these questions were not raised by the appellant before the learned Single Judge. According to them, when the 3rd respondent had Filed objections stating that whip issued by the President was one without authority of law, the Regional Commissioner should have given a finding on the preliminary question of legality and correctness of the issuance of whip by the President, Dist. Congress Committee, Mysore. Therefore, they request the court to dismiss the appeal.

Having heard the counsel for the parties, the only question to be considered by us in these appeals is:

Whether the learned Single Judge is justified in allowing the Writ Petition without remanding the matter to the Regional Commissioner to find out whether the whip issued by PW2 was empowered to issue whip or not?

As rightly pointed out by Mr. Sampath Kumar, the learned counsel for the appellant, none of the respondents except respondent-3 had not raised the question of the power of PW2 to issue whip. Admittedly, PW2 was President of District Congress Committee; Mysore. In their statement of objection, they have not pleaded who was competent to issue whip to them.

Be that as it may, in order to prove the issuance of whip by the President of Dist. Congress Committee, Mysore, the appellant had chosen to examine PW2 Dasegowda who was President of Dist. Congress Committee, Mysore. He has been cross-examined at length. It was questioned to him by the counsel for the respondents who was competent to issue whip other than PW2. Be that as it may, after PW2 was examined in full, if 3rd respondent has filed objections and also her affidavit in lieu of her examination-in-chief on 23.8.2010, when for the first time in her objection, has raised the question of validity of whip issued by PW2, after closure of evidence of PW2, in all fairness, the Regional Commissioner was required to give an opportunity for the appellant to re-open the case in view of the objections filed by the 3rd respondent. For the reasons best known to the Regional Commissioner, she has proceeded with tie matter. Even the learned Single Judge did not consider this aspect of the matter. If the learned Single Judge had considered this point, we are sure that the learned Single Judge would have remanded the matter for fresh consideration to find out the question of competency to issue whip by PW2. In addition to that the appellant could have produced the Resolution passed by the KPCC to show that the District Presidents were authorised to issue whip in all such circumstances. If this document had been produced by the appellant before the Regional Commissioner, it would have answered the objections filed by respondent-3. We are also sure that if 3rd respondent had filed objections earlier, there was no difficulty for PW2 or to the appellant to produce the Resolution which is produced before us or by summoning the General Secretary, KPCC to show that such Resolution has been passed. In the circumstances; we are of the view that the matter required-, to be reconsidered by the Regional Commissioner afresh as it is a case of discipline of a party. On the basis of flimsy grounds if an action is not taken against the erring elected representatives, very sanctity of issuance of ticket by a recognised political party would be taken away and the party also cannot enforce discipline. Accordingly, the Writ Appeals are allowed and the order of the learned Single Judge is set aside and the matter is remanded to the Regional Commissioner, Mysore. All the parties are at liberty to let in further evidence and at any rate the Regional Commissioner is directed to complete the proceedings on or before September 2012.

All the parties shall appear before the Regional Commissioner on 17th August 2012 without any further notice.