Kerala High Court
K.P.Mohandas vs State Election Commissioner on 19 November, 2009
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18830 of 2009(W)
1. K.P.MOHANDAS, S/O.SANKARAN,
... Petitioner
Vs
1. STATE ELECTION COMMISSIONER,
... Respondent
2. KULUKKALLOOR GRAMA PANCHAYATH,
3. K.ABDUL KAREEM, MEMBER, WARD NO.12,
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :19/11/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C) No.18830 OF 2009
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Dated this the 19th day of November, 2009
J U D G M E N T
~~~~~~~~~~~~~ The petitioner stands disqualified on ground of defection in terms of the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (herein after referred to as 'the PD Act'). The order of the State Election Commission, declaring him as so disqualified, is under challenge.
2. Exts.P1 and P2 before the Election Commission stood to show that the petitioner was, even going by his own statements, part of a coalition. The United Democratic Front - UDF, which included the Indian National Congress and the Kerala State Muslim League. The petitioner admits in paragraph 1 of the Writ Petition that, he contested the election with the support of the UDF. Therefore, he is deemed to be a member of the coalition-UDF by virtue of the explanation of Section 2(ii) of the PD Act.
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3. The proceedings before the Commission was initiated by the 3rd respondent, who was the President of the Panchayat, against whom a no confidence motion was carried. It was contended in the petition before the Commission that the no confidence motion was carried with the support of the writ petitioner, who voted in favour of that motion and had thus withdrawn from the coalition. The petition before the Commission was filed on 22.12.2008 alleging that it is apprehended further that the writ petitioner is likely to vote in favour of the rival coalition-LDF in the election to the President, which then stood scheduled to 30.12.2008.
4. Those served with notice of the petition before the Commission calling for appearance on 22.1.2009, the petitioner did not appear. The proceedings before the Commission concluded exparte of the writ petitioner. The Commission held that the petition before it was maintainable and that it was not shown that any direction (whip) was issued by any competent authority, in accordance with law and the writ petitioner cannot be held to have violated any such direction (whip). The Commission, however W.P.(C) No.18830/2009 3 proceeded to hold that on the basis of the materials on record, it was proved that the writ petitioner had contested the election as part of the coalition-UDF and had spoken in support of the no confidence motion moved against the President, who was also a member of UDF. That no confidence motion was carried. Accordingly, the Commission held that the writ petitioner had withdrawn himself from the coalition. It was hence that the impugned order was issued.
5. The writ petitioner pleads that he was suffering from low back pain (Katteegraham), for which he has produced Ext.P1 medical certificate. This is the justification that he has to offer for non-appearance before the Commission. Taking Ext.P1 on its face value, it needs to be noted that the said certificate is only to the effect that the writ petitioner needs bed rest for seven days for better cure and he has been advised absence from duty from seven days from 18.1.2009. While the petitioner holds out that certificate in support of the plea in paragraph 2 of the Writ Petition that he could not appear on 22.1.2009 before the Commission since he had been sick, the fact of the matter remains that the impugned order is issued by the W.P.(C) No.18830/2009 4 Commission only on 9.6.2009 and going by the records of the Commission, as placed by the learned Standing Counsel appearing for it, he was declared exparte only on 28.3.2009. Under such circumstances, I do not find any legal infirmity or jurisdictional error in the Commission having decided the matter exparte.
6. With the aforesaid, what calls for further examination is as to whether, the findings of the Commission are sustainable on the basis of the materials on record. Perusing the ground in the Writ Petition,, it can be seen that the specific finding of the Commission that the writ petitioner was elected with the support of the Muslim League and therefore, a member of the coalition is not in dispute. It is also not in dispute that Ext.P9 before the Commission - the minutes of the meeting in which the no confidence motion was discussed, proved that the writ petitioner had spoken in favour of the motion is also not under challenge. All the nine members, including the writ petitioner, who were present in that meeting voted in favour of the motion and it was thus that the no confidence motion against the President was carried. It was accordingly that the Commission W.P.(C) No.18830/2009 5 concluded that the writ petitioner had joined hands with the rival coalition - LDF - to unseat the petitioner's colleague in the UDF from the post of the President of the Panchayat.
7. One of the specific contentions of the writ petitioner is that he had even after the alleged incident acted in conformity with the coalition-UDF by voting in favour of the UDF candidate in the election of the President of the Panchayat, after the no confidence motion was carried against the 2nd respondent herein. The fact remains that the UDF candidate lost in that re-election and the LDF candidate became the Panchayat President.
8. Be that as it may, an issue, as of law, highlighted in arguments on behalf of the petitioner, is as to whether the concept of an independent member belonging to a coalition withdrawing from such coalition is different from a member of a political party voluntarily giving up his membership of such political party. One of the grounds of incurring disqualification in terms of Section 3(1)(a) of the PD Act, as regards a member of a political party, is that the said W.P.(C) No.18830/2009 6 member voluntarily gives up the membership of such political party. This concept has been interpreted by the Hon'ble Supreme Court of India in Rajendra Singh Rana v. Swami Prasad Maurya [2007(4) SCC 270] in relation to the 10th schedule of the Constitution. The concept 'voluntarily giving up the membership of a political party' has thereafter been considered by this Court in relation to the PD Act and ultimately in Varghese v. Kerla State Election Commission [2009(3) KLT 1], the Division Bench has laid down that the concept of 'voluntarily giving up membership' has a wider meaning than recognition. Reference were made to Ravi S.Naik v. Union of India [AIR 1994 SC 1558], Shajahan v. Chathannoor Grama Panchayat [2002(2) KLJ 451]. The Division Bench of this Court in Varghese's case (supra) further laid down that subsequent change of heart and remorseful conduct of the member or the reconciliatory attitude of the political party cannot repair or undo the damage caused by the disloyal conduct leading to the disqualification and that such steps are to be reassessed by the People, given another choice to contest. W.P.(C) No.18830/2009 7
9. With the aforesaid having been laid down as law in the context of Section 3(1)(a) of the PD Act which uses a phrase 'voluntarily gives up his membership'. The question for consideration now would be as whether the use of the phrase 'withdraws from such coalition' in Section 3(1)(b) as regards an independent, who is a member of a coalition makes any difference in the appreciation and application of law. Going by the definition of 'coalition' in terms of Section 2(ii), a coalition can be between one or more independents and a political party or one or more independents and one or more political parties or among political parties. This conglomeration is conceived with the intention of prohibiting defection among members of local authority in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities, going by the preamble to the PD Act. One does not attain the membership, in the grammatical sense, in a coalition by taking a membership as one may do when admitted to a political party. The explanation to Section 2(ii) provides that a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included W.P.(C) No.18830/2009 8 in that political party or coalition. This deemed membership in a coalition can be terminated by the breaking down of the coalition itself, a situation noticed by this Court in Pathumma v. State Election Commission [2004(2)KLT 568]. It need not be by any express dissolution. Giving up the membership of a political party can be by resignation. 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. In so far as coalitions are concerned, there is no question of resignation as such. The membership in a coalition is itself a deemed status. The provisions in Section 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 Section 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 (4) SCC 854] to point out that the word 'withdraw' W.P.(C) No.18830/2009 9 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 20th Century Dictionary withdraw (verb transitate) is, to draw back or away: to take back or away: to remove: to deflect, turn aside; to recall, retract. The context to be therefore, the concept of withdrawing from a coalition is nothing but voluntarily resigning from the coalition or the group.
10. Now, the legislature having used two sets of words - voluntarily giving up membership & withdrawing from coalition; it needs to be considered whether the legislature intended two different set of situations. One functional tool to appreciate in statutory provisions under interpretation and construction is to adopt an approach to understand whether the provisions were intended to result in different situations or consequences. The object sought to be achieved by the PD Act, as already noticed, is to prohibit defection among members of local authorities and to provide W.P.(C) No.18830/2009 10 disqualification of the defecting members. The prohibition and the liability for violating the prohibition are the same for all the members of the local authorities. They do not get classified on any ground referable to the question whether they are members of a political party or whether they along with a political party are members of a coalition or whether they are independent. The acts sought to be prevented is the same, as was noticed in Varghese's case (supra) and principles quoted therein from Kohoto Hollohan v. Zachillhu [1992 Supp.(2) SCC 651]. What is ultimately sought to be prevented is the evil of political defection motivated by lure of office or other similar considerations, which endanger the foundations of our democracy. The principles laid down in Kohoto Hollaohan's case (supra) by the Apex Court with reference to the 10th schedule of the Constitution of India applies in toto to the provisions of the PD Act, which makes the principles applicable to a larger arena without confining its operations only to political parties. It applies to coalition also.
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11. Therefore, the principles laid down by this Court in the different precedents referred to above on the concept of appreciation of evidence regarding the question, whether a member of a local authority belonging to the political party has voluntarily given up his membership of such political party applies with the same vigour to cases, where the allegation of defection is made against an independent, who has allegedly withdrawn from a coalition.
12. Applying the aforesaid the attempted and proved facts, particularly, those findings, which are not challenged specifically on facts, are themselves sufficient to sustain the impugned order though it has been passed by the Commission exparte. The subsequent contest of the petitioner of having voted for a UDF candidate to the post of the President in no manner improves the case. The result of the writ petitioner's action is that the 2nd respondent, a member of the UDF, who was the President of the Panchayat, was boosted in a no confidence motion and a UDF candidate for that casual vacancy of President lost in that election even though the petitioner had voted for that candidate.
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For the aforesaid reasons, I find no jurisdictional error or legal infirmity in the impugned decision. Ends of justice does not warrant interference with this. The writ Petition fails and the same is dismissed. No costs.
THOTTATHIL B. RADHAKRISHNAN, Judge ps