Kerala High Court
Rama Bhaskaran vs Kerala State Election Commission on 9 December, 2015
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939
WP(C).No. 33299 of 2017
PETITIONER(S) :
RAMA BHASKARAN,
CHERAYIL HOUSE, THEKKEMALA P.O, PATHANAMTHITTA.
BY SRI.V.V.ASOKAN, SENIOR ADVOCATE
ADVS. SRI.K.I.MAYANKUTTY MATHER
SRI.JOSE JOSEPH (CHEMPLAYIL)
RESPONDENT(S):
1. KERALA STATE ELECTION COMMISSION,
CORPORATION OFFICE BUILDING,
LMS JUNCTION, THIRUVANANTHAPURAM 695 033,
REPRESENTED BY ITS SECRETARY.
2. SADASIVAN NAIR,
S/O. GOPALAPILLAI
CHERIKUNNIL HOUSE, KANJIRAVELI, ARANMULA P.O,
PATHANAMTHITTA 689 533.
3. MALLAPPUZHAHASSERY GRAMA PANCHAYATH,
KARTHAVYAM, PUNNACKADU P.O,
PATHANAMTHITTA 689 652,
REPRESENTED BY ITS-SECRETARY.
R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, S.C
R2 BY ADVS. SRI.P.HARIDAS
SRI.P.C.SHIJIN
R3 BY ADV. SRI.GEORGE ABRAHAM PACHAYIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-02-2018, ALONG WITH W.P.(C)NO. 33329 OF 2017 AND
W.P.(C)NO. 33330 OF 2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
05/03/2018
WP(C).No. 33299 of 2017 (J)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE 2ND
RESPONDENT BEFORE THE 1ST RESPONDENT DATED 09-12-2015.
EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THIS
PETITIONER BEFORE THE 1ST RESPONDENT DATED 02-02-2016.
EXHIBIT P3 TRUE COPY OF THE DEPOSITION OF MOHANRAJ DATED NIL.
EXHIBIT P3(A) TRUE COPY OF THE DEPOSITION OF VICTOR T THOMAS
DATED NIL.
EXHIBIT P3(B) TRUE COPY OF THE DEPOSITION OF MOHANDAS DATED NIL.
EXHIBIT P4 TRUE COPY OF THE ORDER PASSED 1ST RESPONDENT
DATED 13-10-2017.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R2(A): TRUE COPY OF THE EVIDENCE OF PW6 IN O.P.NO.80/2015 OF STATE
ELECTION COMMISSION, KERALA.
//TRUE COPY//
P.S.TO JUDGE
Msd.
05/03/2018
(CR)
A.K.JAYASANKARAN NAMBIAR, J.
..............................................................
W.P.(C).No.33299 Of 2017,
W.P.(C).No.33329 Of 2017
&
W.P.(C).No.33330 Of 2017
.................................................................
Dated this the 28nd day of February, 2018
JUDGMENT
In all these writ petitions the common order dated 13.10.2017 of the Election Commission in O.P.No.79 of 2015, O.P.No.80 of 2015 and O.P.No.81 of 2015 are impugned. These matters pertain to an election to the Mallappuzhahassery Grama Panchayath, where, to the 13 seats to which election was held in November 2015, the United Democratic Front (UDF) won five seats, the Left Democratic Front (LDF) four seats, Bharatiya Janata Party (BJP) three seats and an Independent one seat. The components of the UDF, which won the five seats, comprised of the Congress, which won three seats, Janada Dal (U) one seat and Kerala Congress one seat. Similarly, under the LDF, the Communist Party of India (Marxist) (CPI(M)) won three seats and the Communist Party Of India (CPI) one seat. The elected members, then proceeded to hold the election to the post of President on 19.11.2015. It is not in dispute that there was no W.P.(C).No.33299 Of 2017 & con.case 2 whip issued either by the UDF or by the JD(U). The petitioner in W.P.(C).No.33329 of 2017 is a person, who contested as a member of the JD(U), which formed part of the UDF coalition that was formed for the purposes of contesting the election. It is stated that, while the UDF coalition fielded the 2 nd respondent, who was a Congress candidate, as the candidate for the post of President, the petitioner also contested to the post of President and was subsequently elected based on the votes garnered in the election from the LDF Councillors, who voted in favour of the petitioner. One Congress candidate abstained from the election meeting and the Kerala Congress candidate voted in favour of the petitioner. As already noted, consequent to the petitioner being elected as a President, the election of the President was challenged by the 2 nd respondent, who also sought disqualification of the petitioner along with the Congress Councillor who abstained from voting, as also the Kerala Congress candidate who voted in favour of the petitioner. The election petitions came to be numbered as O.P.No.79 of 2015, O.P.No.80 of 2015 and O.P.No.81 of 2015 respectively. Through a common order dated 13.10.2017, the Election Commission found with regard to the Congress Councillor W.P.(C).No.33299 Of 2017 & con.case 3 (O.P.No.81 of 2015) that the said person had not complied with the whip issued by his party and had not attended the election meeting. The justification given by the said person, that he was prevented from attending the Election Meeting on account of an injury sustained by him, was disbelieved based on the evidence adduced, and the said person was held disqualified as a Councillor. In W.P.(C).No.33330 of 2017, the said decision of the Election Commission is impugned by the Congress candidate concerned, who is the petitioner in the said writ petition. As regards the Kerala Congress Councillor, the Election Commission found, in the context of O.P.No.80 of 2015, that the said person had violated the directions in a whip issued by the party, and although the councillor had set up a defence that she had received oral directions to the effect that she was to vote for the petitioner in W.P.(C).No.33329 of 2017, the said version was not believed, based on the evidence adduced before the Election Commission. The said Councillor was also, therefore, disqualified and the order of disqualification is impugned in W.P.(C).No.33299 of 2017 filed by the said person. As regards the petitioner in W.P.(C).No.33329 of 2017, the Election Commission found in the context of O.P.No.79 of W.P.(C).No.33299 Of 2017 & con.case 4 2015 that, although the JD(U) party had not issued any whip or direction that was disobeyed by the petitioner, his contesting the election for the post of President, against an understanding of the coalition, of which his party was an integral part, and further, his emerging successful in the election on the basis of a sponsorship by the opposite party, effectively meant that he had voluntarily given up the membership of his party, and therefore, stood disqualified in terms of Section 3(1) (a) of the Kerala Local Authorities Prohibitions of Defection Act, 1999. As noted above, it is this order of the Election Commission that is impugned in W.P. (C).No.33329 of 2017.
2. I have heard the learned Senior counsel Sri.V.V.Asokan duly assisted by Sri.P.Rahul, appearing for the petitioners in all these writ petitions, the learned Senior counsel Sri.K.Ramkumar duly assisted by Sri.P.Haridas, for the party respondents in all these writ petitions, and also Sri.Murali Purushothaman, the learned Standing counsel for the Election Commission in all these writ petitions.
W.P.(C).No.33299 Of 2017 & con.case 5
3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in respect of W.P.(C).No.33330 of 2017 and W.P.(C).No.33299 of 2017, the said writ petitions can be disposed first since the issue therein arises in a narrow compass and I find that there is no material that is produced in those writ petitions, which is sufficient to dislodge the findings of the Election Commission. In particular, in W.P. (C).No.33330 of 2017, the version of the petitioner therein that he was prevented from attending the election meeting on account of an illness was disbelieved by the Election Commission, on the finding that, the illness itself was not so grave as necessitated an absence from the election meeting. The conduct of the petitioner therein in abstaining from the election meeting, where he was expected to vote for a candidate of his party, was viewed as sufficient for the purposes of disqualifying him, on the ground that, he had acted contrary to the interest of the party which had fielded him for election to the seats in the Panchayat. As regards W.P. (C).No.33329 of 2017, I find that the finding therein is essentially that, there was in fact a whip that was issued by the political party of which the petitioner therein was a member, and the evidence W.P.(C).No.33299 Of 2017 & con.case 6 adduced suggested that the petitioner therein had acted contrary to the whip issued by the political party. The contention of the petitioner therein that she had also received a contrary instruction, from the person who had signed the whip on behalf of the political party, was also disbelieved on the basis of the evidence adduced before the election commission. The disqualification of the petitioner therein on the basis of evidence that was tendered before the Election Commission also cannot be interfered with in these proceedings under Article 226 of the Constitution of India for want of any grounds warranting such an interference with such proceedings.
4. As regards W.P.(C).No.33329 of 2017, I find that the disqualification of the petitioner therein is primarily on the ground that, he had voluntarily given up membership of his party. It would be apposite in this context to refer to Section 3 of the Kerala Local Authorities (Prohibitions of Defection) Act which reads as follows:
b