P.S.

Ghanamallangouda vs The State Election Commission on 5 February, 2014

Karnataka High Court

P.S.Ghanamallangouda vs The State Election Commission on 5 February, 2014
Author: Aravind Kumar
:1:

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

Dated this the 5th day of February, 2014

Before

THE HON'BLE MR. JUSTICE ARAVIND KUMAR

WRIT PETITION No.100127/2014 (GM-RES)

BETWEEN:

P.S.GHANAMALLANGOUDA
S/O SOMANGOUDA
AGE: 64 YRS
OCC: DISTRICT CONGRESS LEADER
R/O NO.17, KHB COLONY
S.N.PETH, 1ST ROAD
BELLARY
DIST: BELLARY ... PETITIONER

(By Sri SHIVARAJ P MUDHOL, ADVOCATE)

AND :

1 THE STATE ELECTION COMMISSION

REP. BY ITS COMMISSIONER
BANGALORE

2 THE ZILLA PANCHAYAT,

BELLARY
DIST: BELLARY
REP. BY ITS CHIEF EXECUTIVE OFFICER

3 M.RAJASHEKHAR GOUD
S/O M.RUDRA GOUD
AGE: 34 YRS, OCC: BUSINESS
:2:

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 P.S.Ghanamallangouda vs The State Election Commission on 5 February, 2014

ZILLA PANCHAYAT MEMBER

R/O NO.169, LINGAYYATARA STREET
M.GONAL VILLAGE
TQ: BELLARY, DIST: BELLARY
... RESPONDENTS

----------

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 20.12.2013 IN
COMPLAINT PASSED BY 1ST RESPONDENT VIDE
ANNEXURE-A AND ETC.,.

THIS PETITION COMING ON FOR PRLY.HG. THIS

DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard Sri Shivaraj P Mudhol, learned Advocate appearing for petitioner.

2. Petitioner claims to be an active member of Indian National Congress Party. On account of

complaint submitted by petitioner to second respondent which came to be forwarded to first
respondent, not being addressed in proper perspective namely, under the provisions of Section 4 of
The Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short 'Anti Defection Act')
whereunder petitioner had contended that third respondent had got elected to second respondent
-Zilla Panchayat, Bellary and he being an active member of Bharatiya Janata Party (for short 'BJP'),
without tendering his resignation to BJP party, had contested for the Karnataka Legislative
Assembly Constituency from No.60, Kustagi Constituency as a candidate set up by Badavara
Shramikara Raitara Congress Party (for short 'BSR') and was not elected and as such, Anti Defection
law applies and he should have been disqualified. Said application submitted by petitioner to second
respondent on 24.06.2013 came to be forwarded to first respondent and it came to be adjudicated
after issuing notice to the third respondent. By order dated 20.12.2013 complaint came to be
dismissed on the ground that aggrieved person would only be a political party and not a third party
like petitioner.

3. The complaint which came to be submitted by petitioner for disqualifying third respondent was
filed under Section 4(1) of the Anti Defection Act which clearly indicates that complaint can be made
by a Member, Councillor or a Political Party to the Chief Executive Officer of the concerned local
authority alleging that such Member or Councillor has become subject to disqualification under
Section 3. The ground for disqualification under Section 3 is the ground of defection. Section 3(1) of
the Anti Defection Act 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,-

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 P.S.Ghanamallangouda vs The State Election Commission on 5 February, 2014

(a) if he has voluntarily given up his membership of such political party ; or

(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."

Definition of 'Political Party' can be found in Section 2(6) which reads as under:

"2(6). 'Political Party' in relation to a Councillor or member means a political party

recognised by the Election Commission of India as a National Party or a State Party
in the State of Karnataka under the Election Symbols (Reservation and Allotment)
Order, 1968, and to which he belongs for the purpose of sub-section (1) of Section 3."

4. A combined reading of these two provisions would clearly indicate as to the

conditions required to be attracted to disqualify a person and the time or period
within which such complaint can be filed.

Section 4(1)(b) of the Anti Defection Act would specifically indicate that in a case falling under
Section 3(1)(b) of the Anti Defection Act, a complaint can be filed only after expiry of 15 days period
specified therein. This period of 15 days has been obviously given to a political party with the
intention of condoning such Act of the Member or Councillor as the case may be. Thus, if the
definition of 'political party' as defined under Section 2(6) is read in conjunction with section 3(1)
and 4(1) of the Anti Defection Act, it would clearly indicate that it is only the political party to which
a Member or Councillor belongs to can complain about such act committed by its Member or
Councillor which would attract the provisions of disqualification. In other words, such application
can be filed by the Member, Councillor or Political Party to which such member may belong to and
not by any other person. A complaint can be filed under Section 4(1) of the Anti Defection Act by a
Member or Councillor or Political Party only against a Member or Councillor or Political Party,
belonging to that political party and not otherwise. As rightly observed by the first respondent, a
Member or Councillor belonging to Indian National Congress party can file a complaint against a
Member or Councillor of Indian National Congress party and not against Member or Councillor of
some other party and it is for the purpose of ensuring that a discipline is maintained and elected
representatives of a political party having got elected under the manifesto of said political party,
cannot deviate from the said political party.

5. In the instant case, undisputedly, petitioner who is neither a Councillor nor a Member of political
party to which third respondent belongs to i.e., BJP, has complained to the second respondent for
disqualifying the third respondent on the ground that there is defection. Neither the political party
to which third respondent belongs to nor any Member of Bellary District Zilla Panchayat of BJP

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 P.S.Ghanamallangouda vs The State Election Commission on 5 February, 2014

party have complained against third respondent. In that view of the matter, impugned order cannot
be found fault with and same is hereby affirmed.

Hence, writ petition is hereby dismissed. No costs.

SD/-

JUDGE *sp

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