ASHA BHARGAV Vs. CHIEF SECRETARY ZILLA PARISHAD SHIMOGA

JUDGEMENT

(1.) the petitioner a lady contested from a reserved constituency, reserved for women at the polls held to constitute the mandal panchayat, honnali, shimoga district. She was declared elected and was duly functioning as a member of that panchayat.

(2.) but then her apple-cart has been upset following a complaint made by rcspondent-2 also said to be a member of the same mandal panchayat, to the chief secretary respondent-1 alleging that the lady after having been successfully returned on a no parly label, i.e., as an independent has since joined the bharatiya janata party, an act which amounted to defection within the meaning of the law and as a sequel thereto she should be held to be disqualified from continuing as a member. This complaint was investigated after notice to the petitioner. The learned first respondent made the impugned order dated 25-10-1991 (Annexure-G). The effective portion of the order is mercifully very brief and it reads thus: <IMG>JUDGEMENT_125_KANTLJ3_1991Image1.jpg</IMG> earlier the chief secretary has set out the facts of the case and at paragraphs (a) and (b) has highlighted the arguments submitted by learned counsel appearing before him on either side. In the operative portion of the order to which I have drawn attention to, he simply rest it contained by declaring that he was satisfied that the petitioner was guilty of defection and was therefore disentitled to continue on the council of the mandal panchayat in question, as a result he struck her out from the array of members representing on the mandal panchayat committee. Not unnaturally petitioner feels aggrieved by the impugned order which has resulted in the forfeiture of true position in the mandal panchayat she had annexed following the triumph at the polls, where I am told she had to contend against several others who were in the fray.

(3.) the controversy herein is all about the petitioner having joined a political party and accepted a new banner under which she has chosen to function in the mandal panchayat council. It is common ground that she contested and won the election as a non-party candidate, in other words as an independent. The charge of defection as made against her is that subsequently she had joined the bjp party, became a card holding member of that particular party and on that score the deputy commissioner now holds that she should seize to be a member of the mandal panchayat. The Provisions requisite for consideration in this behalf are Section 3(1) and (2) of the Karnataka local authorities (prohibition of defection) Act, which reads: