Kerala High Court
Shameena Ibrahimkutty vs The Kerala State Election Commission on 10 November, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.10956 OF 2016(T)
PETITIONER:
SHAMEENA IBRAHIMKUTTY
W/O.IBRAHIMKUTTY, AGED 42 YEARS, MEZHUKKATTIL
HOUSE,EDATHALA NORTH.P.O., ALUVA, ERNAKULAM
DISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
THIRUVANANTHAPURAM, PIN-695001.
2 A.MAYIN
S/O.ALIYAR, ANJILIMOOTTIL, NOCHIMA, NAD P.O.,ALUVA,
ERNAKULAM DISTRICT-683563.
R2 BY ADV. SRI.T.B.HOOD
BY ADV. SMT.M.ISHA
R1 BY ADV.SRI. MURALI PURUSHOTHAMAN SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.11.2020, ALONG WITH WP(C).10838/2016(D), WP(C).10839/2016(D),
WP(C).10848/2016(E), WP(C).10955/2016(T), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.10838 OF 2016
PETITIONER:
LILLY JOHNY
W/O.JOHNY, AGED 50 YEARS, CHEMBAKASSERY HOUSE,
CHOONDY, ERUMATHALA P.O., ALUVA, ERNAKULAM
DISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
THIRUVANANTHAPURAM, PIN - 695 001.
2 A.MAYIN
S/O.ALIYAR, ANJILLIMOOTTIL, NOCHIMA, NAD P.O.,
ALUVA, ERNAKULAM DISTRICT-683 563.
BY ADV. SRI.AMAL KASHA
R2 BY ADV. SRI.T.B.HOOD
R1 BY ADV. SRI. MURALI PURUSHOTHAMAN SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.11.2020, ALONG WITH WP(C).10839/2016(D), WP(C).10848/2016(E),
WP(C).10955/2016(T), WP(C).10956/2016(T), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.10839 OF 2016
PETITIONER:
ABIDA ABDUL SALAM
W/O. ABDUL SALAM, AGED 47 YEARS, PALLIPARAMBIL
HOUSE,GANDHI NAGAR, COLONYPADY, ERUMATHALA P.O.,
ALUVA, ERNAKULAM DISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
THIRUVANANTHAPURAM, PIN - 695 001.
2 A. MAYIN SO. ALIYAR, ANJILIMOOTTIL
NOCHIMA, NAD P.O., ALUVA, ERNAKULAM DISTRICT- 683
563.
BY ADV. SRI.AMAL KASHA
R2 BY ADV. SRI.T.B.HOOD
R1 BY ADV. SRI. MURALI PURUSHOTHAMAN SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.11.2020, ALONG WITH WP(C).10838/2016(D), WP(C).10848/2016(E),
WP(C).10955/2016(T), WP(C).10956/2016(T), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.10848 OF 2016
PETITIONER:
M.A.M.MUNEER
S/O. ALIYAR, AGED 40 YEARS, MUKALARKUDY,
EDATHALA.P.O., ALUVA, ERNAKULAM DISTRICT, PIN-
683561.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 THE KERAL STATE ELECTION COMMISSION
THIRUVANANTHAPURAM, PIN-695001.
2 A. MAYIN
S/O. ALIYAR, ANJILIMOOTTIL, NOCHIMA, NAD.P.O.,
ALUVA, ERNAKULAM DISTRICT-683563.
BY ADV. SRI.AMAL KASHA
R2 BY ADV. SRI.T.B.HOOD
R1 BY ADV. SMT.M.ISHA
R1 BY ADV. SRI. MURALI PURUSHOTHAMAN SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.11.2020, ALONG WITH WP(C).10838/2016(D), WP(C).10839/2016(D),
WP(C).10955/2016(T), WP(C).10956/2016(T), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.10955 OF 2016
PETITIONER:
K.V.VELU
S/O.VAIRONI, AGED 55 YEARS, KOOLIYATT HOUSE,KURNAD,
EDATHALA POST, ALUVA.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
THIRUVANANTHAPURAM, PIN-695001.
2 A.MAYIN
S/O.ALIYAR, ANJILIMOOTTIL, NOCHIMA, NAD P.O.,ALUVA,
ERNAKULAM DISTRICT-683563.
BY ADV. SRI.AMAL KASHA
R2 BY ADV. SRI.T.B.HOOD
R1 BY ADV. SRI. MURALI PURUSHOTHAMAN SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.11.2020, ALONG WITH WP(C).10838/2016(D), WP(C).10839/2016(D),
WP(C).10848/2016(E), WP(C).10956/2016(T), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C).No.10838/2016, 10839/2016, 'C.R."
10848/2016, 10955/2016 & 10956/2016
========================
J U D G M E N T
Dated this the 10th November, 2020 The petitioners in all these writ petitions are the members of Edathala Grama Panchayat based on an election held in the year 2010. They were ordered to be disqualified by a common order of the Kerala State Election Commission dated 27.1.2016. This order is arising from different petitions filed by one A.A.Mayin, the second respondent in all these writ petitions. The petitioners herein were ordered to be disqualified for contesting as candidates in an election to any local authorities for a period of six years from the date of the order, i.e. 27.1.2016.
2. Since common question on facts and law is involved, that too arising out of a common order, it is appropriate to dispose these cases by a common judgment. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:2:- The exhibits referred to in this judgment are the exhibits referred to by the Election Commission in the common order.
3. The petitioners and A.A.Mayin were elected to the Grama Panchayat in the election contested with the party symbol of Congress. Indian National Congress (INC) was part of a coalition called United Democratic Front (UDF). The other constituent of UDF was Muslim League. INC secured eight seats and Muslim League secured two seats; rival political party, Left Democratic Front (LDF) secured six seats; another party, Bharatiya Janata Party got three seats and; two independent members were also elected; totalling
21. UDF decided to form a Board with the support of independents.
4. It appears that an agreement was arrived among the parliamentary party of Congress under the directives of the District Congress and the State Congress party leadership to share the total period of term of the Board between the members who secure highest and second highest support. Out of the eight members, four members supported M.A.M.Muneer ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:3:- and; three members supported A.A.Mayin. Accordingly, the first term was assigned for M.A.M.Muneer as the President. The second term was proposed to be assigned for the presidentship of A.A.Mayin.
5. It seems that M.A.M.Muneer refused to step down after the first term. District Congress Committee (DCC) President issued specific directions to M.A.M.Muneer to step down on 24/10/2013 and 27/12/2013. He refused. The Parliamentary Party of INC was convened by DCC President on 10/5/2014. Other petitioners who were the members of the Panchayat, elected on congress ticket, also abstained from attending the meeting. Again the KPCC General Secretary, State Congress, sent a letter to M.A.M.Muneer to step down on or before 14/5/2014. M.A.M.Muneer refused and he was suspended on 5.6.2014.
6. Taking note of the circumstances as above, Kerala State Committee of Congress convened a joint meeting on 18.8.2014 of the parliamentary party members and political party leaders. It appears that, in that meeting ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:4:- M.A.M.Muneer refused to accede to the request made by the leaders. Again the State Congress sent a letter to M.A.M.Muneer on 23/9/2014 calling for his explanation for non compliance of the earlier directions. Since M.A.M.Muneer continued to disobey the party directives, in the meeting of the parliamentary party members, the District Congress President issued a direction on 5/12/2014 to support the move of no-confidence motion against M.A.M.Muneer.
7. No confidence motion was tabled on 12/12/2014 at 10 a.m. Notice was published on the notice board of the Grama Panchayat on 4/12/2014. Notices were issued to the members on 3/12/2014.
8. The petitioners in these writ petitions absented from the meeting scheduled for moving the no-confidence motion.
9. The no-confidence motion could not be taken up for want of quorum. It seems that the opposition party members also remained absent. Setting out the allegations as above, A.A.Mayin approached the Election Commission on 27/12/2014 ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:5:- for declaring the petitioners as disqualified under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as the 'Defection Act').
10. The case put forward by M.A.M.Muneer was that he was suspended from the party and therefore, he was not bound by any directives issued by the District Congress President or the State Congress. He also disputed the existence of the agreement to share the term between him and A.A.Mayin. M.A.M.Muneer contended that the majority in the parliamentary party had not taken any decision to move a no-confidence motion against him. M.A.M.Muneer deposed that he never absented from attending the meeting and that he arrived at the venue by 10.20 a.m., but by that time, the meeting was dispersed.
11. The other writ petitioners who were the members defended the petition for disqualification inter alia contending that they were absent based on their leave applications for six days from 7.12.2014 to 14.12.2014. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:6:- These leave applications were submitted stating that they were going for a tour along with their family members.
12. The Election Commission after adverting to pleadings and evidence came to the conclusion that the petitioners were liable to be disqualified under Section 3(1)(a) of the Defection Act.
13. The facts involved in this case have to be analysed differently. One, related to Muneer and the other related to other petitioners who are the members of the Panchayat, for clarity.
14. I shall advert to the arguments raised by the learned Senior Counsel, Shri T. Krishnanunni who appeared for M.A.M.Muneer. According to the learned Senior Counsel, M.A.M.Muneer was expelled and therefore, he was not bound by any directions issued by the Congress party. The learned Counsel further submitted that the dictum laid down by the Apex Court in G.Viswanathan v. Speaker of Tamil Nadu [(1996) 2 SCC 353] that an expelled member of a party deemed to be a member of that political party for the purpose of anti ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:7:- defection law, has been doubted by the subsequent Benches of the Apex Court. Therefore, it is submitted that the judgment in G.Viswanathan's case should not be relied upon to hold that an expelled member is also bound by the directions issued by his former political party. The learned Senior Counsel further argued that if there is no service of whip in a manner indicated under Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (hereinafter referred to as the 'Disqualification Rules'), the whip is invalid. According to the learned Senior Counsel, when service is effected by registered post, it shall be done with acknowledgement due. Since no acknowledgement due was produced, it cannot be said that there was a valid service of notice of whip. The learned Senior Counsel placed reliance on the Indian Post office Act 1898 and Indian Post Office Rules, 1933. The learned Senior Counsel also argued that cause of action against M.A.M Muneer on the ground of defection relatable to voluntarily giving up of membership was barred by limitation. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:8:-
15. The learned Senior Counsel who also appeared for other writ petitioners submitted that there was no service of whip on other members and they were absent for valid reasons.
16. The learned counsel Shri T.B.Hood appearing for A.A.Mayin argued that the scope of judicial review is limited and this Court cannot overturn finding of facts in exercise of the power under Article 226 of the Constitution.
17. Discussions on the case related to M.A.M.Muneer:
The cause of action pleaded by A.A.Mayin arose on 12/12/2014, the date of moving the no-confidence motion. According to A.A.Mayin, M.A.M.Muneer absented from the voting. The ground for defection was pleaded alleging that M.A.M.Muneer defied party directives to step down, attracting the ground of defection relatable to voluntarily giving up of membership of the party. The first of such event occurred on 24/10/2013. The Election Commission ordered disqualification of M.A.M.Muneer not merely based on his abstention on 12/12/2014, the date of no-confidence ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:9:- motion but for series of violations of the directions issued by the party that would attract the ground for defection relatable to voluntarily giving up membership of the party.
18. The grounds of disqualification as referred under Section 3 of the Defection Act may come into existence in different circumstances enumerated under Section 3. Here in this case, as highlighted in the pleadings and evidence, grounds referred would attract only Section 3(1)(a). First limb of Section 3(1)(a) refers to the ground of defection for voluntarily giving up of membership of a political party. The second limb refers to defying the whip issued.
19. Though the question of limitation was not adverted to by the Election Commission, arguments have been raised at the Bar on this question with reference to Rule 4A(2) of the Disqualification Rules. Rule 4A(2) mandates filing of a petition within 30 days from the date of deemed disqualification of the member. The Election Commission however is given the power under the proviso to the aforesaid rule to condone any delay involved without any ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:10:- prescription of outer limit within which delay can be condoned. It is doubtful to construe the rule as such for prescription of limitation as no such provision is provided under the parent Act, nevertheless, taking note of the power of the Government to formulate rules for procedure under Section 7 of the Defection Act, this has to be construed as provisions regulating the procedure to reject any petitions on the ground of laches. It is to be noted that political party and the member of the local body alone have been conferred with the right to move the petition for disqualification. Therefore, if there are no sufficient grounds explained for the delay occurred in filing the petition, it is open for the Election Commission to reject the application on the ground of laches. Therefore, pleadings in a petition have to be construed in such a way as to find out whether there were laches on the part of the petitioner in moving the Election Commission or not. Cause of action pleaded cannot be construed in a like manner as constructed for reckoning the period of limitation. If a ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:11:- cause of action is pleaded based solely on the ground of violation of whip, and no petition is filed within 30 days, any petition filed thereafter, is liable to be rejected on the ground of laches. However, if the cause of action pleaded is on the ground of series of violation of party directives, all that have to be construed as a singular act to attract the provisions of the grounds of defection. It may not be proper to reckon each of such action in the series of events distinctly as it were to calculate for the period of limitation or to reject it on the ground of laches. In such cases, for filing a petition, the cause of action has to be reckoned from the last date of series of events occurred on the ground related to defection. In a matter related to voluntarily giving up of membership, series of events may occur disobeying the directions. All such actions can be combined together and last of such action alone need to be reckoned for the purpose of period mentioned in Rule 4A(2) of the Disqualification Rules. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:12:-
20. In this case, in respect of both the limbs under Section 3(1)(a), the petition was within time. The series of directions given by the party starting from 24/12/2013 till 12/12/2014 have been allegedly violated by M.A.M.Muneer. Last of such event occurred on 12/12/2014. The petition was filed on 27/12/2014. In regard to the second limb, admittedly, the application was within time. Therefore, this point is answered in favour of A.A.Mayin.
21. The direction issued by DCC President on 27/12/2013 is produced as Ext.P2. There is no dispute to the fact that M.A.M.Muneer was suspended. There is also no dispute to the fact that no-confidence motion was moved against M.A.M.Muneer as directed by the Congress party. When there is a direction issued by a political party to step down, and if it is not obeyed, that would attract the first limb of Section 3(1)(a) relating to voluntarily giving up of membership. This Court in Faisal v. Abdulla Kunhi [2008 (3) KLT 534] held that refusal to step down from presidentship would amount to voluntarily abandoning his ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:13:- party membership. The fact that M.A.M.Muneer was suspended and expelled from the party is not in dispute. These suspension and expulsion in relation to the conduct of M.A.M.Muneer related to the local authority. Therefore, on the admitted facts itself, M.A.M.Muneer is liable to be disqualified for abandoning the membership of his political party. The Judgment of the Apex Court in Viswanathan's case has not been overruled so far. It holds the field. Therefore, I need not upset the findings of the Election Commission on this ground.
22. Service of whip can be effected in a manner provided under Rule 4 of the Disqualification Rules. It contemplates different modes of service. One, directly giving to the member; the other, service through registered post with acknowledgement due and; the third mode of service is affixing it in the presence of at least two witnesses. Simultaneously, a copy of the same shall be given to the Secretary of the Local Self Government Institution. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:14:-
23. In the case of M.A.M.Muneer, it was pleaded that whip was communicated by registered post. Service also was effected on the Block Secretary. If there is no valid service of the whip, a member cannot be disqualified on the ground of defying the whip; though it may attract the first limb related to abandoning the membership of the political party if the member had the knowledge of such whip.
24. Rule 4(2) of the Disqualification Rules mandates service through registered post with acknowledgement due. In respect of M.A.M.Muneer, postal receipts were produced. It is to be noted that M.A.M.Muneer had not denied the pleading that he was communicated the whip through registered post in the counter affidavit filed before the Commission. Acknowledgment also is seen produced and marked as Exts.P10 and P10(a). In such circumstances, I hold that there was a valid communication of the whip. According to M.A.M.Muneer, he came to attend the meeting at 10.20 am. He admits that motion was scheduled to be taken up at 10 am. Under Section 157(3) of the Panchayat Raj Act, the elected ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:15:- member shall be present at the time appointed by the Officer for convening the meeting of no-confidence motion. Under Section 157(6), quorum required for the meeting will be one half of the elected members of the Panchayat. M.A.M.Muneer was not there at the appointed time. This itself would establish that he defied the whip and, therefore, both limbs under Section 3(1)(a) attracted for disqualification of M.A.M.Muneer. I affirm the findings of the Election Commission against M.A.M.Muneer.
25. Discussions of other petitioners:
In regard to the other petitioners, who were the members of Congress elected along with M.A.M.Muneer, the case of disqualification set up in the petition mainly related to the second limb of Section 3(1)(a). However, if there is no valid service of the whip, and the members were aware of such whip, it would also attract the first limb related to voluntarily giving up of membership. The specific case pleaded in the petition is that these members were aware of no-confidence motion tabled on 12/12/2014 and they remained ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:16:- absent on that day. There is no dispute in regard to their absence. It was specifically pleaded that service of whip was effected through registered post. In the counter affidavit filed before the Election Commission, there was denial of receipt of whip by other members. No acknowledgement due or returned postal article with acknowledgement due were seen produced. Only postal delivery slips were seen produced. In the light of specific denial it was the duty of A.A.Mayin to prove the service. It is to be noted that service was attempted only through registered post.
26. Rule 64(1) of the Indian Post Office Rules, 1933 states that if the sender of a registered article pays at the time of posting the article a fee of Rupee 3 in addition to the postage and registration fee, on the delivery of the article a form of acknowledgement would be sent to him. This would show that a separate fee has to be paid for the acknowledgement in addition to the registration fee. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:17:-
27. Rule 4(2) of the Disqualification Rules mandates that if the direction of the whip is sent by registered post, it shall be sent along with acknowledgement due. If there was no acknowledgement due sent at the time of posting and if the service of whip is disputed, such service cannot be treated as valid even if it was sent by registered post. Presumption under Section 27 of the General Clauses Act, 1897 in regard to service of post would arise only when service is effected in proper address with prepayment and posting by registered post. If no payment for acknowledgement due is proved, no presumption would arise as sending through registered post along with acknowledgment due is requirement of rule. In this case, there was a complete denial of service of registered whip sent to the other members. In the absence of production of acknowledgement due or returned postal article with acknowledgement due, this Court have to hold that there was no service of whip on the other members except M.A.M.Muneer. ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:18:-
28. Next question is whether the other members were aware of or were having knowledge of the meeting. Members Shameena Ibrahimkutty and Lilly Johny received the postal article as evident from Ext.P6. Ext.16(a) to 16(h) series are receipts of registered postal articles sent. Notice of no-confidence motion was also affixed on the notice board of the Block Panchayat. The counter affidavit filed by the other members clearly show that they are supporting M.A.M.Muneer. Supporting M.A.M.Muneer who had defied party membership clearly establish that other members are all along colluding with M.A.M.Muneer by acting against the interest of the party. If the other members were aware of the no-confidence motion and they remained absent on the day scheduled for moving no-confidence motion, that would attract the first limb of Section 3(1)(a) i.e. voluntarily giving up membership of the political party. Absence on the appointed day can be condoned only by the political party and not by the Election Commission. The Election Commission cannot enter upon a finding that their absence ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:19:- was for valid reasons or not. What was to be considered by the Election Commission is whether the members acted against the interest of the political party or not. If any direction issued by the political party is not condoned by the party, that would attract the first limb of Section 3(1)(a). The very case of the other members that they availed leave clearly indicates that they want to remain absent on the date of no-confidence motion. If they want to remain absent, that can be done only with the concurrence of the political party to avoid disqualification on the ground of defection. It is to be noted that a parliamentary committee was convened with the party members of the Congress to take a decision on no-confidence motion on 5/12/2014. Therefore, the other members cannot pretend ignorance as to the no-confidence motion moved. Thus, this Court has to conclude that their action would amount to voluntarily giving up of their membership. Though this Court cannot agree with the findings of the Election Commission, they can be disqualified on the ground relatable to violation of the ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:20:- whip, nevertheless, they are liable to be disqualified on voluntarily giving up their membership. Therefore, these writ petitions are only to be dismissed. Accordingly, these writ petitions are dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms ~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10838/2016, 10839/2016, 10848/2016, 10955/2016 & 10956/2016 ======================== -:21:- APPENDIX OF WP(C) 10956/2016 PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE O.P. FILED BY THE 2ND RESPONDENT HEREIN BEFORE THE 1ST RESPONDENT DATED 27.12.2014.
EXHIBIT P2: TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN O.P.2/2015 DATED 03.03.2015.
EXHIBIT P3: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27.01.2016.
RESPONDENTS' NIL
EXHIBITS:-
APPENDIX OF WP(C) 10838/2016
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE O.P.FILED BY THE 2ND
RESPONDENT HEREIN BEFORE THE 1ST RESPONDENT DATED 27.12.2014.
EXT.P2: TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN O.P.5/2015 DATED 03.03.2015. EXT.P3: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27.01.2016.
RESPONDENTS' EXHIBITS:- NIL APPENDIX OF WP(C) 10839/2016 PETITIONER'S EXHIBITS:
EXHIBIT P1:- TRUE COPY OF THE OP FILED BY THE 2ND RESPONDENT HEREIN BEFORE THE 1ST RESPONDENT DATED 27-12-2014.
EXHIBIT P2:- TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN O.P. 3/2015 DATED 03-03-2015 EXHIBIT P3:- TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27-01-2016 RESPONDENTS' EXHIBITS:- NIL APPENDIX OF WP(C) 10848/2016 PETITIONER'S EXHIBITS:
EXT.P1. TRUE COPY OF THE ORIGINAL PETITION FILED BY THE 2ND RESPONDENT HEREIN BEFORE THE 1ST RESPONDENT DATED 27-12-2014.
EXT.P2. TRUE COPY OF THE CIRCULAR ISSUED BY KERALA PRADESH CONGRESS COMMITTEE DATED 28-10- 2010.
EXT.P3. TRUE COPY OF THE MINUTES OF THE CONGRESS PARLIAMENTARY PARTY DATED 5-11-2010.
EXT.P4. TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN OP 1/2015 DATED 3-3-2015.
EXT.P5. TRUE COPY OF THE ADDITIONAL STATEMENT FILED BY THE PETITIONER IN O.P. 1/2015 DATED 16- 12-2015.
EXT.P6. TRUE COPY OF THE DEPOSITION OF PW1.
EXT.P7. TRUE COPY OF THE DEPOSITION OF PW2.
EXT.P8. TRUE COPY OF THE DEPOSITION OF PETITIONER AS RW1.
EXT.P9. TRUE COPY OF THE DEPOSITION OF RW2.
EXT.P10. TRUE COPY OF THE DEPOSITION OF RW3, ANOTHER MEMBER OF THE GRAMA PANCHAYATH BY NAME AMBILY REJI PRAKASH WHO BELONGED TO BJP.
EXT.P11. TRUE COPY OF THE NO CONFIDENCE MOTION.
EXT.P12. TRUE COPY OF THE NOTICE ALLEGED TO HAVE ISSUED BY THE 1ST RESPONDENT ON 14-8-2014.
EXT.P13. TRUE COPIES OF THE SERIES OF DOCUMENTS MARKED BEFORE THE 1ST RESPONDENT AS EXT.P16 SERIES.
EXT.P14. TRUE COPY OF THE ORDEDR OF THE 1ST RESPONDENT DATED 27-01-2016.
RESPONDENTS' EXHIBITS:- NIL APPENDIX OF WP(C) 10955/2016 PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE O.P.FILED BY THE 2ND RESPONDENT HEREIN BEFORE THE 1ST RESPONDENT DATED 27.12.2014.
EXHIBIT P2: TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN O.P.4/2015 DATED 03.03.2015.
EXHIBIT P3: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27.01.2016.
RESPONDENTS' EXHIBITS:- NIL