ORDER : 1. On 29.10.2020, a notification was issued for the conduct of an election to the post of President/Vice-President of the Town Municipal Council, Mahalingapur on 09.11.2020. 2. The President of the State BJP party, by his communication dated 01.11.2020, had authorised the District President of the BJP party to decide the manner in which the members of the BJP were supposed to conduct themselves and also decide in whose favour the vote was to be cast for the elections which was scheduled to be conducted on 09.11.2020 for the post of President and Vice-President. 3. On the strength of this authorization, on 07.11.2020, a meeting of the elected Councilors of the BJP party was convened by the District President of the Bagalkot division of the BJP party. 4. In this meeting, it was resolved therein that the 3rd respondent was to be the official contestant of the BJP for the post of President and the 2nd respondent was to be the official contestant of the BJP for the post of Vice-President. 5. In this meeting, a direction was stated to have been issued to the members of the BJP party directing them to cast their votes in favour of the official candidates i.e., the 3rd and 2nd respondents. 6. In this meeting, it was stated that only 10 of 13 members belonging to the BJP party were present and the remaining three members i.e., the petitioners were absent. It was stated that since the petitioners were not present in the meeting, the direction dated 07.11.2020 issued to Councilors of Mahalingapur Town Municipal Council to cast their votes in favour of 2nd and 3rd respondents was stated to have been communicated to the petitioners by way of affixture of the direction on the doors of their houses. 7. On 09.11.2020, elections were conducted and, in these elections, the 1st and 2nd petitioner contested the election against the official candidates and the 3rd petitioner was absent to the meeting. 8. In the elections, the 1st and 2nd petitioner and the official candidates secured an equal number of 10 votes and in view of the tie, the elections were decided by the toss of a coin. 9. The coin did not fall in favour of the 1st petitioner and she lost. However, the coin fell in favour of the 2nd petitioner and she was elected as the Vice President. 10. 9. The coin did not fall in favour of the 1st petitioner and she lost. However, the coin fell in favour of the 2nd petitioner and she was elected as the Vice President. 10. As the petitioners had cast their votes in contravention of the direction, a complaint was lodged for disqualifying the petitioners under the provisions of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short, the Act). 11. The Deputy Commissioner proceeded to conduct an enquiry and passed an order on 08.04.2021 to the effect that the petitioners had acted in contravention of the direction issued by the person authorized by their political party and as a consequence they had incurred disqualification for being Councilors. 12. This order of the Deputy Commissioner was challenged by filing of a Writ Petition in W.P. No.102096/2021(LB RES) before this Court. This Court, after hearing the petitioners, was pleased to allow the writ petition and quashed the order of the Deputy Commissioner and directed the Deputy Commissioner to reconsider the matter within a period of 60 days from 16.08.2021. 13. In the course of said order, this Court also observed that the Deputy Commissioner had committed an error in concluding that the direction (whip) was duly served upon the petitioners by affixture i.e., by pasting the same on the doors of members without appreciating that in the absence of any steps taken to the petitioners in a manner known to law i.e., by RPAD, courier or by personally serving a whip upon the petitioners. It was observed that mere pasting of the whip on the doors of petitioners’ houses was not sufficient to hold that the whip had been duly served on them. 14. Pursuant to the said order, the Deputy Commissioner has reconsidered the matter and has come to the conclusion that the whip was indeed pasted on the doors of the petitioners’ houses and though this was disputed, as the provisions of the Act did not contemplate service of notice of the direction on the members in any particular manner, service of notice by affixture could be one of the modes to serve the direction. 15. 15. The Deputy Commissioner also proceeded to place reliance on the decision of the Bombay High Court (Aurangabad Bench) in the case of Gajanan S/o.Subhashrao Suryavanshi vs. Sharad Namdeo Pawar and Others, reported in 2013 (6) Mh L J. P-505 to come to the conclusion that the issuance of the whip was by itself sufficient to infer that it is known to every constituent and once the whip was issued, the constituent was supposed to know the same and contention regarding service of whip was untenable. 16. The Deputy Commissioner then proceeded to hold that the President was authorized to issue the whip and since the whip was to the knowledge of the petitioners and yet they had voted contrary to the whip, they had incurred the disqualification as prescribed under the Act. 17. The petitioners’ being aggrieved by this order of disqualification, are before this Court by way of this writ petition. 18. Learned counsel Sri Mahesh Wodeyar contended that this Court in the earlier round of litigation categorically observed that the whip could not have been held to be duly served by mere affixture in the absence of any steps having been taken to serve the same manner known to law i.e., either through RPAD, courier or by personal service. He submitted that in view of this clear observation that the service of whip by way of affixture was improper and the Deputy Commissioner had erred in passing the impugned order disregarding the observations of this Court. 19. Learned counsel also submitted that in order to attract disqualification under Section 3 of the Act, the prerequisite was the existence of a direction which is issued either by the political party or by any person or authority authorized by it and the communication of this direction to the elected members. He submits that assuming a direction was issued by either the political party or by a person authorized by it, unless it was also established beyond all reasonable doubt that the direction issued was indeed served on a member, the provisions of Act cannot be invoked. 20. He submitted that the use of the word “any direction issued” would clearly pre-suppose that the direction would have to be intimated to the concerned persons. 20. He submitted that the use of the word “any direction issued” would clearly pre-suppose that the direction would have to be intimated to the concerned persons. He submitted that mere issuance of direction cannot obviously be used to invoke the right to seek for a disqualification, which had serious repercussions not only on the concerned member. He submitted that an illegal disqualification also had the effect of invalidating the mandate of the voters and this was against the very essence of democracy. 21. He submitted that since admittedly there are no rules framed prescribing the manner in which the direction was to be issued or served, the political party cannot be permitted to adopt affixture as an adequate means for service given to the drastic consequences of disqualification on an elected member. 22. He submitted that the disqualification of an elected candidate cannot be treated lightly since it amounted to defeating the mandate of the residents of the Gram Panchayat and it was therefore absolutely essential that the direction issued by the political party is proved to have actually been served on the petitioners. 23. He also highlighted the fact that admittedly the notification to hold the elections on 09.11.2020 had been issued on 29.10.2020 and the political party had therefore adequate time to convene a meeting and issue a direction to vote. However, the political party had chosen to hold the meeting on the evening of the 07.11.2020 i.e., about 36 hours before the election and had decided to communicate its direction only on the following day i.e., on 08.11.2020 and the political party thus took the risk of its direction not being served on its Councilors. 24. He submitted that in law if the direction had been communicated in advance, the members of the political party had an option of seeking permission to vote against the direction and if such permission was granted, the law did not permit the invocation of provisions of the 1987 Act. He submitted that since the political party was to be blamed for taking a last-minute decision, it cannot be assumed or presumed that the petitioners were aware of the direction. He therefore submitted that the impugned order cannot be sustained. 25. Learned counsel Sri Srinand A.Pachchapure appearing for the political party, on the other hand, contended that the petitioners were very much aware of the direction. He therefore submitted that the impugned order cannot be sustained. 25. Learned counsel Sri Srinand A.Pachchapure appearing for the political party, on the other hand, contended that the petitioners were very much aware of the direction. He sought to highlight the fact that the photographs produced before the Deputy Commissioner indicated the presence of the close relatives of the petitioners and therefore, it will have to be assumed that the petitioners were aware of the directions. 26. He submitted that the order of the Deputy Commissioner could not be found fault with since the petitioners had voted contrary to the directions issued by the political party. He submitted that the order of the Deputy Commissioner could not be found fault with since on a consideration of the totality of the circumstances of the case, the only conclusion that the Deputy Commissioner could have taken was that the petitioners were aware of the direction and yet chose to act in contravention of the direction. He submitted that since there are no statutory rules, it was open for the political party to adopt such modes as was practicable to the situation and the service of notice by way of affixture had rightly been accepted by the Deputy Commissioner. 27. Smt. K.Vidyavati, learned AAG also supported the impugned order and contended that the order of the Deputy Commissioner given the facts and circumstances of the case was just and proper. 28. Both learned counsel placed reliance on the decision rendered in Writ Petition No.105239/2021(LB-RES) and also decision of the Division Bench of Bombay High Court in Gajanan’s case (supra). 29. In order to appreciate the contentions of the learned Counsel, an overview of the provisions of the 1987 Act would be necessary. 30. Section 3 of the 1987 Act, which provides for the disqualification reads as follows : “3. 29. In order to appreciate the contentions of the learned Counsel, an overview of the provisions of the 1987 Act would be necessary. 30. Section 3 of the 1987 Act, which provides for the disqualification reads as follows : “3. Disqualification on the ground of defection.-(1) Subject to the provisions of sections 3A, 3B and 4, a councillor or a member, belonging to any political party, shall be disqualified for being such councillor or member,- (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; Explanation.-For the purposes of this sub-section,- (a) a person elected as a councillor, or as the case may be, a member, shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such councillor or member; (b) a person elected as a councillor or as the case may be, a member, otherwise than as a candidate set up by a political party shall be deemed to belong to the political party of which he becomes a member before the expiry of six months from the date of commencement of his term of office, or in the case of a councillor or member whose term of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995 within six months from such date. (2) An elected councillor, or as the case may be, a member, who has been elected as such, otherwise than as a candidate set up by a political party shall be disqualified for being a councillor or, as the case may be a member if he joins a political party 1[after expiry of six months from the date of commencement of his term of office, or in the case of a councillor or member whose term of office has commenced on or before the date of commencement of the Karnataka Local Authorities (Prohibition of Defection) (Amendment) Act, 1995, after expiry of six months from such date. (3) x x x ] (4) Notwithstanding anything contained in the foregoing provisions of this section, a person who on the commencement of this Act, is a councillor shall,- (a) where he was a member of a political party immediately before such commencement, be deemed for purposes of sub-section (1) to have been elected as a councillor as a candidate set up by such political party ; (b) in any other case, be deemed to be an elected councilor who has been elected as such otherwise than as a candidate set up by any political party for the purpose of subsection (2).” 31. In the instant case, the provisions of Section 3(b) would be relevant and since the case relates to voting by a Councilor contrary to a direction issued, only with reference to this factual aspect, the matter is analyzed. 32. A plain reading of Section 3(b) would indicate that if a councilor belonging to any political party (or by a person authorised by the party) votes contrary to any direction issued by the political party to which he belongs without obtaining the prior permission from the such party, he attracts the distinct possibility of being disqualified to continue as a Councilor. 33. There are however two situations in which the Councilor, despite casting his vote contrary to the direction, can escape the wrath of disqualification. 34. The first situation is, if prior to the voting the Councilor had obtained the permission of the political party to cast his vote contrary to the direction. 35. The second situation is, after the vote is cast by the Councilor contrary to the direction, if this act of voting contrary to the direction is condoned by the political party which had issued the direction. 36. 35. The second situation is, after the vote is cast by the Councilor contrary to the direction, if this act of voting contrary to the direction is condoned by the political party which had issued the direction. 36. Thus, the statutory provision does not provide for an automatic disqualification of a Councilor merely because he has cast his vote contrary to the direction issued by his political party. The Councilor attracts the possibility of being disqualified only if he has not secured permission to cast his vote contrary to the direction or if his act of voting contrary to the direction has not been condoned by the political party. 37. Thus, the law, actually provides for two modes of escape to a Councilor to escape the ignominy of being disqualified. For both the modes, the acquiescence of the political party which had issued the direction, either before or after the vote was cast, is imperative. 38. Since, the law recognizes the right of the Councilor to seek for permission to vote contrary to the direction of his political party, it is natural and logical that the Councilor be informed of the direction to cast his vote in a particular manner. It therefore follows that the communication of the direction to the Councilor is imperative. 39. As the law contemplates providing of an opportunity to the Councilor to seek for permission of his political party, it becomes necessary that the Councilor has adequate time and opportunity to seek for the permission. 40. It is to be borne in mind that political situations are extremely fluid and can change courses dramatically and instantaneously and hence it is necessary that the Councilors are aware of a direction being issued by their political party and they also have a reasonable and clear opportunity to seek for permission to act contrary to the direction. 41. In order to facilitate this requirement of the law, it would firstly, be essential that an acceptable mode of communication of the direction be prescribed. However, this requirement of framing Rules, as provided under the Act, has not been undertaken by the State despite the lapse of 3 ½ decades since the Act was enacted. 42. 41. In order to facilitate this requirement of the law, it would firstly, be essential that an acceptable mode of communication of the direction be prescribed. However, this requirement of framing Rules, as provided under the Act, has not been undertaken by the State despite the lapse of 3 ½ decades since the Act was enacted. 42. The absence of statutory Rules has given rise to avoidable controversies and misuse by both the political party and the elected members, which has in turn, resulted in the objective of ensuring disqualification to an errant councilor illusory. 43. It is not also un-common in our democracy that decisions taken by the political parties are changed more than once. If the arguments of the respondents are accepted, mere issuance of a direction which is within the knowledge of only the political party and not communicated to any elected member is by itself sufficient to disqualify a councilor. 44. Hypothetically speaking, in a given case, if a direction is issued by any person authorized by the political party and that direction is not made known or communicated to all the persons, who are to abide by the said direction, either by design or by a genuine error, the person who is not aware of the said direction would stand disqualified merely because he had acted in a manner contrary to a direction, which he was not even aware. 45. It is to be noticed here that the fundamental basis for a defection is that a person has decided to act contrary to a specific direction issued by his political party and he would therefore suffer the wrath of disqualification. If a person is not aware of the direction, he cannot be penalized for acting in the manner contrary to the direction. 46. It is to be stated here that under the provisions of the Karnataka Municipalities Act, there is no compulsion for a member of political party to act in a manner directed by his political party. A member of the Municipal Council is entitled according to his own conscience in a Council meeting. However, by virtue of the provisions of the 1987 Act, an exception is created whenever a direction is to a member of the political party has been issued to act in a particular manner. 47. A member of the Municipal Council is entitled according to his own conscience in a Council meeting. However, by virtue of the provisions of the 1987 Act, an exception is created whenever a direction is to a member of the political party has been issued to act in a particular manner. 47. Therefore, in order to attract the provisions of this Act, it will have to be clearly established beyond doubt that the direction was indeed communicated to the person who is supposed to act in a particular manner as directed by the political party. 48. In the instant case, admittedly, the direction was issued only in the evening of 7th of November 2020 and this was sought to be communicated only on the following day i.e., 8th November 2020. 49. Admittedly, the notice was not served personally on the petitioners. Furthermore, no attempt had been made to communicate the direction through any one of the modes of services. Generally speaking, notices under various enactments such as Civil Procedure Code and other Acts notice is to be effected personally or by RPAD or by courier or through electronic mail. 50. It is only after the service through any one of the recognized modes is unsuccessful, resort is taken to affixture. However, in the instant case, the political party has chosen to directly resort to affixture. 51. It is to be stated here that when service of notice, by way of affixture is effected by the person interested in the service of notice, it creates a suspicion as to whether there was actual service of the notice. Since the consequence of acting contrary to the direction entails serious consequence such a disqualification, it is essential that an acceptable mode of service be adopted for establishing that a person belonging to a political party was suffered a disqualification. 52. The State Government could have prescribed a mode of service of notice by framing rules in exercise of its power conferred under Section 9 of the Act, 1987. However, the Government despite the lapse of 35 years since enactment of the Act, 1987 is yet to frame rules thereby creating a grey area in the matter of effecting service of a direction issued by the political party. However, the Government despite the lapse of 35 years since enactment of the Act, 1987 is yet to frame rules thereby creating a grey area in the matter of effecting service of a direction issued by the political party. This grey area is prone to misuse by both the political party as well as by the members of the political party and both of them are obviously taking advantage of this grey area to contend that there has been either a proper service or there has been no service as the case may be to effectively defeat the provisions of the Act, 1987. 53. In the instant case, since there is no clear proof that the petitioners were aware of the affixture and since the Deputy Commissioner has himself noticed that (a) the 3rd petitioner had stated that the notice affixed was on the door of a house in which she was not residing but her mother-in-law was residing (b) the 1st petitioner had denied that the door on which the notice was affixed was not the door of her house and (c) the 2nd petitioner had denied the affixture on the door of her house, it would be unsafe to act upon the alleged service to hold that the petitioners were aware of the direction. 54. The reliance is placed upon the decision of this Court in Writ Petition No.105239/2021(LB RES) would be of no avail since in that particular case, the Court had found that the petitioners had more than adequate time to withdraw their candidatures after becoming aware that there was an official candidate. As already stated above for the purposes of suffering a disqualification, it would be absolutely essential that there was a direction to vote in a particular manner. 55. In a given case, there could be a candidate officially declared by the political party, without there being a direction to vote for the official candidate. Unless there is a specific direction issued to all its members cast the vote only in favour of the official candidate, the provisions of the 1987 Act would not stand attracted. 56. It may be pertinent to state here that the Court had also noticed in that decision that it would have helped its rules been framed by the Government though Act had been enacted in the year 1987. 57. 56. It may be pertinent to state here that the Court had also noticed in that decision that it would have helped its rules been framed by the Government though Act had been enacted in the year 1987. 57. It is also pertinent to state here that in the earlier round of litigation i.e., in Writ Petition No.102096/2021, it already held that in the absence of any steps taken to serve the manner known to law i.e., RPAD and courier or by personal service, mere pasting of the whip on the doors of the petitioners’ houses by way of affixture would not be sufficient to hold that the whip had been served on the petitioners. 58. The reliance placed on the decision of the Division Bench of High Court of Bombay in the case of Gajanan’s case (supra) cannot also be of any avail. In the said case, it was not in dispute that the direction was sent by registered post on the addresses of the petitioners and was therefore deemed to have been served on them. Thus in that case, the communication of the direction was deemed to have been served, in view of the fact that it was sent by registered post. In the light of those facts, the decision rendered in that case would be inapplicable to the facts of the present case. 59. Since it is not established that the direction to vote in favour of respondent Nos.2 and 3 has not been established by the political party, the decision rendered by the Deputy commissioner to the effect that petitioners had acted contrary to the direction issued by the political party and they have thereby incurred a disqualification cannot be sustained and same is quashed. Accordingly, writ petition is allowed. 60. However, before parting with the matter, it would be necessary to issue certain directions regarding the manner in which service of a direction is communicated to the elected members for the purpose of attracting the provisions of the 1987 Act. 61. In the case of Vishaka and Ors. vs State of Rajasthan reported in (1997) 6 SCC 241 , the Apex Court has held that in the absence of an enacted law in respect of any particular issue, the Courts can frame guidelines, which are required to be considered as the law, until the legislature enacts appropriate legislation in that regard. 62. vs State of Rajasthan reported in (1997) 6 SCC 241 , the Apex Court has held that in the absence of an enacted law in respect of any particular issue, the Courts can frame guidelines, which are required to be considered as the law, until the legislature enacts appropriate legislation in that regard. 62. Consequently, it will have to be held that the order of disqualification passed by the Deputy Commissioner is unsustainable for lack of proof of the direction being communicated or served to the petitioners and the impugned order is accordingly quashed. 63. Before parting with the case, it would be necessary to state that, as noticed above, the State has not framed Rules under the 1987 Act and this has contributed to several kinds of litigation and has resulted in which the provisions of the 1987 Act have not been enforced fully and effectively thereby defeating the very purpose of maintaining integrity in public life. 64. Thus, until the State frames Rules under the 1987 Act, the following procedure shall be followed in the matter of communicating the direction of the Political party to its elected members. 65. The political party or the person authorised by it to issue a direction shall submit a copy of the direction that it has issued to all its members to act in a particular manner to the authority which is competent to convene the meeting, at least 5 days before the meeting is convened. 66. The authority shall thereafter communicate this direction to the members in the same manner as provided for notifying the members of the meeting convened. 67. The elected members, would thus, have the option of seeking for permission to act contrary to the direction and thus not be subjected to disqualification under the Act. 68. If the direction of the political party is not communicated to the authority empowered to convene the meeting of the elected body, no proceedings for disqualification shall be initiated against the elected members. 69. 68. If the direction of the political party is not communicated to the authority empowered to convene the meeting of the elected body, no proceedings for disqualification shall be initiated against the elected members. 69. If the direction of the political party is communicated to the authority empowered to convene the meeting, it shall be the duty of that authority to ensure that the direction of the political party is communicated to the elected member within 5 days preceding the meeting and if notices are served in the same manner relating to the convening of the meeting, such service would be deemed service. 70. It shall also be open for the political parties to effect service by RPAD or Courier of by email to the elected members giving them at least 5 days to seek for permission to vote contrary to the direction. 71. These guidelines shall be in force till statutory rules are framed by the State under the 1987 Act. 72. A copy of this order be sent to the Chief Secretary who shall ensure that appropriate directions are issued to all concerned to abide by this procedure until statutory rules have been framed. 73. Writ petition is accordingly allowed.