Kerala High Court
Regi Francis vs The Kerala State Election Commission
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934
WP(C).No. 24037 of 2010 (D)
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PETITIONER(S):
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REGI FRANCIS, MEMBER WARD NO.2,
ELIKKULAM GRAMA PANCHAYATH, KOORALI ,P.O. , PONKUNNAM,
KOTTAYAM.
BY ADVS.SRI.ALEX.M.SCARIA
SRI.SAJEEVAN KURUKKUTTIYULLATHIL
SRI.SAJU JOSE
RESPONDENT(S):
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1. THE KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, LMS JUNCTION, PALAYAM,
THIRUVANANTHAPURAM-695 001.
2. MRS.SUMANGALADEVI JAYAKRISHANAN,
MEMBER, WARD NO.9, ELIKKULAM GRAMA PANCHAYATH,
KOORALI P.O., PONKUNNAM, KOTTAYAM
RESIDING AT KRISHNAPRIYA , KOPRAKKALAM,
PONKUNNAM-686 522.
R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
R2 BY ADV. SRI.R.T.PRADEEP
ADV. SRI.V.VIJULAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-2013,
THE COURT ON 28.02.2013 DELIVERED THE FOLLOWING:
W.P.C.24037/10
APPENDIX
PETITIONER'S EXTS.:
EXT.P1: CERTIFIED COPY OF DECLARATION FILED BY R2 SHOWING HER POLITICAL
AFFILIATION.
EXT.P2: COPY OF REGISTER SHOWING HER POLITICAL AFFILIATION OF EACH MEMBER
IN THE ELIKKULAM PANCHAYAT.
EXT.P3: PROCEEDING OF PRESIDENT ELECTION HELD ON 06.10.05 IN THE ELIKKULAM
PANCHAYAT COMMITTEE.
EXT.P4: PROCEEDINGS OF PRESIDENT ELECTION HELD ON 30.11.07 IN THE ELIKKULAM
PANCHAYAT COMMITTEE.
EXT.P5: COPY OF THE O.P.83/07 FILED IN FRONT OF THE R1.
EXT.P6: COPY OF THE OBJECTION OF R2 IN O.P.83/07.
EXT.P7: COPY OF THE ORDER DATED 13.8.09 IN W.P.(C) NO.22072/09.
EXT.P8: ORDER DATED 3.7.2010 PASSED BY R1.
RESPONDENTS' EXTS.: NIL.
A.M.SHAFFIQUE, J
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W.P.C.No.24037 of 2010
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Dated this the 28th day of February 2013
J U D G M E N T
Petitioner challenges Ext.P8 order passed by the Kerala State Election Commission dismissing an application filed by the petitioner seeking disqualification of the second respondent who was one of the elected candidates in the Elikkulam Grama Panchayath in the general elections to the local bodies held in the year 2005.
2. Both the petitioner as well as the second respondent were elected as the members of the Panchayath. According to the petitioner they were put up by the United Democratic Front which comprised of Indian National Congress and Kerala Congress (Mani). The second respondent was the official nominee of the UDF for the post of President. She was defeated by one vote. When the President resigned from the post in 2007, fresh elections were conducted on 30/11/2007. It is the contention of the W.P.C.No.24037 of 2010 2 petitioner that at the relevant time the second respondent deserted the UDF and contested as the candidate of rival LDF. This, according to the petitioner, amounted to disqualification under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act 1999 (hereinafter referred as the Act). Complaint of the petitioner is that despite the fact that sufficient evidence was adduced to prove disqualification of the second respondent, the Election Commission, on an appreciation of the facts and evidence involved in the case, came to the conclusion that the petitioner has failed to establish that the second respondent has incurred disqualification under the provisions of the Act and dismissed the original petition.
3. The main contention urged by the petitioner is that the Election Commission did not consider the pleadings of the 2nd respondent in the written submission wherein she had not specifically denied that she was a candidate of congress at the time of election and formed part of UDF W.P.C.No.24037 of 2010 3 coalition. Further the Election Commission did not consider the evidence adduced in the case by way of Ext.X1 and X5 which inter alia proved the averments in the petition and the same were rejected on the ground that the Secretary who maintained the said register was not examined. Further it is also found that petitioner has not taken any steps to call for the ballot papers that were used in the subject voting.
4. No counter affidavit is filed in the matter. Learned counsel for the petitioner relies upon judgment of this Court in Mohandas K.P. v. State Election Commissioner, Tvm and Others [2009(4) KHC 935] in order to contend as to what amounts to withdrawing from coalition as provided under Section 3(1)(b) of the Act wherein the learned Single Judge of this Court held as under:
10. But, voluntarily giving up membership of a political party need not be necessarily by resignation, for incurring the liabilities under the PD Act. This is the law laid in the precedents noted above. Insofar as coalitions are concerned, there is no W.P.C.No.24037 of 2010 4 question of resignation as such. The membership in a coalition is itself a deemed status. The provision in S/3(1)(b) that if an independent member of any coalition withdraws from such coalition, he shall be disqualified from being member of that local authority means only that the member 'withdraws' from the coalition, in which he had a deemed membership by virtue of the definition contained in S.2(ii). Here, the learned senior counsel appearing for the 3rd respondent Panchayat supporting the writ petitioner relied on the judgment of the Apex Court in Mohd.Yunus Saleem v. Shiv Kumar Shastri, 1974 KHC 724 : 1974(4) SCC 854 :
AIR 1974 SC 1218 : 1974 (3) SCR 738 - to point out that the word 'withdraw' means to retire from contest. That decision rendered construing the provisions of the Representation of the People Act, 1951, took the view that "withdraw" in that context means "withdraw or retire from contest". The word 'withdraw' is not defined in the PD Act. Going by the Chambers's Twentieth W.P.C.No.24037 of 2010 5 Century Dictionary, 'withdraw' (verb transitive) is, "to draw back or away : to take back or away : to remove : to deflect : turn aside : to recall, retreat". Contextually, therefore, the concept of withdrawing from a coalition is nothing but voluntarily backing way from the coalition or the group."
5. Reference is also made to the judgment in Chinnamma Varghese v. State Election Commission [2010(3) KLT 426 DB]. On an analysis of the various provisions of law under the Act, this Court held in paragraph 23 as under:
23. No doubt in the case of the appellant, the appellant not only signed the notice of no confidence motion but also voted in favour of the no confidence motion which eventually resulted in the ouster of the President of the Panchayat who belonged to the L.D.F. coalition. But coming to the question of voting there is nothing in the law which binds the appellant who is established to be an independent member of the W.P.C.No.24037 of 2010 6 Panchayat to vote in accordance with the desires of the coalition partners. No binding legal direction was ever issued against the appellant. A no confidence motion is essentially a matter of conscience of the voter (member of the Panchayat). The Kerala Local Authorities (Prohibition of Defection) Act, 1999, to some extent, restricts the free choice of the voter (member of the Panchayat) in this regard. Such restriction first came to be introduced by the amendment to the Constitution and introduction of the Tenth Schedule to the Constitution with reference to the Members of the Parliament and the State Legislatures.
The law makers thought it fit to bring in such restrictions on the free choice of the holders of the elected offices to vote in any manner as they please during their tenure. The perceived distortions in the political morality prompted the law makers to introduce such provisions which curtail the right of the elected representatives of the various bodies to exercise their voting rights freely in certain W.P.C.No.24037 of 2010 7 contingencies. In the ultimate analysis voting is nothing but a mode of expression of opinion. Such restrictions, in our view, are required to be enforced strictly in accordance with the tenor of the law. If under the scheme of the Act voting or abstaining from voting contrary to the specific direction of either the political party or the coalition renders the person violating the whip disqualified on the ground of defection, the same conclusion cannot be logically reached in the cases of persons who are not obliged to obey such directions or against whom no direction whatsoever was ever legally issued on the ground that such a conduct would render such a person disqualified on the ground that the conduct would tantamount to withdrawing from the coalition."
6. The learned counsel for the petitioner argues that the finding of the Election Commission was apparently not justified on account of the fact that the 2nd respondent has virtually admitted in her written statement that she was elected as a candidate of Congress (I) which formed part of W.P.C.No.24037 of 2010 8 UDF coalition. In fact the averments would show that she has not specifically denied that she was not a member of the UDF whereas according to her that was a matter to be proved by the petitioner. Further, it is stated by the respondent that she was still working as a member as per the declaration given to the Panchayath. The declaration given to the panchayath would indicate that she was a candidate of Indian National Congress with support of UDF. This apparently is given after the election. In order to constitute a defection as available under Section 3(1)(b) of the Act, proof is required to indicate that she was elected as a member of the UDF and Congress (I). If she had contested the election to the post of President with the support of LDF, it will definitely attract defection as per the provisions of the Act. The Election Commission however had come to the conclusion that though in Ext.X5 declaration filed by the 2nd respondent it is seen that she is an independent candidate supported by Congress, she has denied having given such a W.P.C.No.24037 of 2010 9 declaration. However in Ext.X1 register the declaration is entered which, according to the Election Commission, is not enough proof as the witness who made the entry is not examined. The learned counsel for the petitioner relied upon Section 78 (5) of the Evidence Act to show that proceedings of a Municipal body is proved by a copy of such proceedings certified by the legal keeper, and does not require further oral evidence.
7. Apparently this is a case in which the basic issue is whether the 2nd respondent has defected by voluntarily giving up her membership of a political party and whether the act of her standing as a candidate of the opposition amounts to such a defection as provided under Section 3(1)(a) or (b) of the Act.
8. I am of the view that the Election Commission ought to have taken into consideration the register maintained by the Secretary of the Panchayath without him being examined in the case as the same is an official W.P.C.No.24037 of 2010 10 document and can be proved by production. That apart, as per Rule 5(3) of the Kerala Local Authorities (Disqualification of Defected Members) Rules 2000 the Election Commission may if it deems necessary examine the veracity of the declaration filed by the member concerned under sub Rule 2 of Rule 3 and may also examine as to whether the member belongs to a political party or to a coalition as an independent member not included in a political party or a coalition. Such a consideration is not seen made while discussing the above case, especially when the 2nd respondent has not specifically taken any contention regarding her participation in the election process, after having denied the declaration which she had submitted in terms of Rule 3. As already indicated, Ext.X1 is maintained by the authority under Rule 3 which is an official document and it is for the person who challenges the veracity of the said entry to disprove the contents thereof. No such attempt has been made by the 2nd respondent in the matter, W.P.C.No.24037 of 2010 11
9. Further, the pleadings in the case especially the objection filed by the 2nd respondent was not properly considered in the case in order to come to the conclusion as to whether there was a proper denial of the fact that the 2nd respondent has contested the election as a candidate of the Congress (I) with the support of UDF. If it is not specifically denied it amounts to admission. Therefore I am of the view that the Election Commission has not considered the matter in its proper perspective.
10. Hence this is a matter which requires to be reconsidered by the Election Commission. It is argued by the learned counsel for the petitioner based on the judgment in Jancy Chandy v. Jose Puthenkala (2006(4)KLT 116) that there is no reason to remand the matter as the evidence available on record is sufficient to come to the conclusion. Having regard to the factual circumstances involved in the matter and the limited scope of judicial review, I am of the view that a reconsideration of the matter W.P.C.No.24037 of 2010 12 is required.
In the result, the writ petition is allowed. Ext.P8 order passed by the 1st respondent is set aside. The matter shall be reconsidered by the 1st respondent and appropriate orders may be passed as expeditiously as possible after giving opportunity to either side to adduce evidence or make further submissions.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.No.24037 of 2010 13 W.P.C.No.24037 of 2010 14