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Judgment
Anand Byrareddy, J.—Heard the learned Counsel for the petitioners and the respondents.
The facts of the case leading up to this writ petition are as follows.
The petitioners are all elected councillors of the City Muncipal Council, Doddaballapur. It consists of 31 elected councilors. The petitioners belong to the Congress (I) party, which has 12 elected members in the body, including these 8 petitioners. Respondent No. 3 herein was the President of the council, when a requisition was submitted by 22 Councillors, including the petitioners, seeking the convening of a meeting to consider a no-confidence motion against respondent No. 3, as per the requisition dated 23-6-2009. This was promptly challenged by the said respondent, immediately after receiving a notice of a meeting proposed in this regard, from the Deputy Commissioner. This Court on hearing the writ petition had allowed the same by its order dated 19-6-2009.
Again on 13.7.2009, 23 councilors, including the petitioners submitted a requisition to convene a meeting to consider a no-confidence motion against respondent No. 3. Accordingly a meeting notice dated 27.7.2009 was issued in respecting of a meeting proposed on 5.8.2009. And on 5.8.2009, the resolution expressing want of confidence was carried by a majority of 22:5. Thereafter, an election to the post of the president was held on 3-9-2009.
In the meanwhile, Respondent No. 3 had submitted a petition dated 25.8.2009, to Respondent No. 1 u/s 3 of the Karnataka Local Authority (Prohibition of Defection) Act, 1987 (Hereinafter referred to as the ''1987 Act'', for brevity). Respondent No. 1 in turn, had issued notices to the petitioners to answer the allegation by Respondent No. 3 that the President, Karnataka Pradesh Congress Committee (KPCC) had issued a letter dated 28-6-2009 directing the General Secretary KPCC to issue authorisation to the District President to issue a "whip". This was complied with as on 2.7.2009, and the same was dispatched by post to all the petitioners on 3.7.2009.
It transpires that respondent No. 1 had summarily allowed the petition of respondent No. 3, without holding any enquiry, by his order dated 18.11.2009.
It is the contention of the petitioners that the order has overlooked certain glaring infirmities which by the very fact could not have warranted the said order. It is sought to be pointed out that the direction issued by the President KPCC only refers to the election that was to be held to the office of the President and Vice-President of the CMC, while the same is silent of the authority under which such direction was being issued, nor was there a reference to party resolution to issue such directions. It is further contended that the directions issued by the General Secretary, KPCC is also silent about these aspects. Hence, it is contended that there was no reference to the subject of the no-confidence motion.
It is contended that the petitioners had raised a pointed objection in their statement of objections to the complaint, as regards the authority of the President, KPCC to issue the whip. The Respondent No. 1 has glossed over the same and has hence overlooked a primary requirement to sustain a complaint as regards the violation of the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (hereinafter referred to as the ''1987 Act'', for brevity). Though there was an attempt to belatedly establish that the issuance of directions aforesaid were duly authorized by the party, by seeking to produce so-called orders, which are at Annexures F, F-1 and F-2, there was no evidence tendered to prove the authenticity of the same. There was no semblance of an enquiry conducted and the petitioners were not offered an opportunity to challenge the said documents.
It is also pointed out that the sequence of events would clearly indicated that the whip could not relate to the no-confidence motion at all. It is stated that insofar as the allegation that the petitioners had joined hands with the elected representatives of a rival party and had made representations calling for a no-confidence motion against respondent No. 3 , as on 3.6.2009, at a meeting scheduled to be held on 19.6.2009. However the said no-confidence motion having been challenged before this Court, the writ petition was allowed and the same was quashed. It is thereafter that an alleged whip is said to have been issued by the District Congress Committee President on 2.7.2009 and 4.7.2009 to its elected representatives, individually, directing them that they shall not vote in favour of any no-confidence motion against respondent No. 3. It was only as on 13.7.2009, that a representation was made seeking a meeting to consider a no-confidence motion against the third respondent and a meeting was convened only on 5.8.2009. Hence the whip issued in seeming anticipation of the motion is not contemplated and even if had been validly issued could not pertain to the meeting of 5.8.2009.
Therefore it is prayed by the Counsel for the petitioners that the petition be allowed.
Per contra, the Counsel for the respondent No. 3 would contend that the allegation as to the petitioners not having been given an opportunity to challenge the material produced in support of the complaint is incorrect. The learned Counsel would point out that the petitioners were represented by Counsel before the Deputy Commissioner , who were present at the enquiry but did not choose to examine or cross-examine any witnesses, hence the allegation in this regard is not tenable.
As regards the contention that there was no authority to issue directions by the President, KPCC, is denied and it is asserted that the same is in accordance with the party''s constitution and rules and the material produced in this regard was not challenged by the petitioners before the Deputy Commissioner.
The learned Counsel has produced the Constitution and the rules of the Indian National Congress and has relied upon the following authorities in support of his case.
Municipal Corporation of the City of Ahmedabad Vs. Ben Hiraben Manilal,
M.T. Khan and Others Vs. Government of Andhra Pradesh and Others, .
Smt. Ananda Lakshmi and Another Vs. Deputy Commissioner, Mysore District and Others,
Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others,
Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, .
In the light of the above contentions, two primary questions that arise for consideration are:
(a) whether there was a resolution passed by the political party to which the petitioners belonged , whereby the petitioners were informed of the party whip; and
(b) whether a whip that is issued even before an event is contemplated could be held against the petitioners.
It is well settled that a finding as to disqualification under the 1987 Act having regard to the serious consequences following the disqualification, a strict compliance with the provisions of the Act and the Rules must be shown to have taken place as observed by the apex court in Sadashiv H. Patil Vs. Vithal D. Teke and Others, . In the case on hand, the competence of the President, KPCC to authorize the President, District Congress Committee, to issue a whip was questioned by the petitioners in response to the complaint by respondent No. 3, before respondent No. 1. This was apparently with reference to the language of Section 3 of the 1987 Act. The relevant sub-clause, namely, Sub-clause (1)(b) of Section 3 is reproduced hereunder for ready reference.
(1)(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 authorised 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
The question arises whether the direction issued by the President of the District Congress Committee on the strength of the authorization issued by the President ,KPCC can be construed as a direction "issued by the Political party" as required under the above provision.
From a reading of the authorization issued by the President KPCC, which is at Annexure - F to the writ petition, there is No. reference to any party resolution on the basis of which such authority to issue a direction or whip was delegated to him, which he has sub-delegated.
The learned Counsel for respondent No. 3 is unable to point out any provision under the Constitution and the Rules of the Indian National Congress whereby such power has been conferred on the President KPCC. From the scheme of the Constitution it is apparent that the party functions through Committees at all levels. The president of any Committee can at best act as the correspondent for the particular committee, unless a power is specifically conferred on him to act for the party. A decision to issue a whip therefore could not have been authorized by the President KPCC acting on his own, which is the only presumption one can draw from the language of Annexure-F, to the writ petition.
Secondly, the direction issued much prior to the request of the Council members seeking the convening of a meeting to consider a no-confidence motion against Respondent No. 3 is also unnatural and further dilutes the claim that such a direction was duly authorized by the political party.
Hence on these limited grounds, the writ petition deserves to be allowed and is accordingly allowed. Annexure - G is quashed.