Kerala High Court
Smt. Jessie Raju vs The Communist Party Of India on 26 November, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 28TH DAYOF JUNE 2017/7TH ASHADHA, 1939
WP(C).No. 17751 of 2017 (T)
-----------------------------------------
PETITIONER(S) :
-------------------------
SMT. JESSIE RAJU, W/O.RAJU
AGED 46 YEARS, POOKKOTTU HOUSE,
RAMAMANGALAM P.O,PIN-686 663.
BY SRI.S.SREEKUMAR (SENIOR ADVOCATE)
ADVS. SRI.P.MARTIN JOSE
SRI.R.GITHESH
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT(S) :
----------------------------
1. THE COMMUNIST PARTY OF INDIA,
ERNAKULAM DISTRICT COUNCIL,
CHADAYANMURI SMARAKAM, KALOOR,
ERNAKULAM, PIN-682 017,
REPRESENTED BY ITS SECRETARY.
2. THE KERALA STATE ELECTION COMMISSION,
THIRUVANANTHAPURAM -695 001.
R1 BY ADVS. SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.ASHWIN SETHUMADHAVAN
SMT.B.MEERA
SRI.S.SABARINADH
R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, S.C
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-06-2017, THE COURT ON 28-06-2017 DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 17751 of 2017 (T)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS & ANNEXURES :
EXHIBIT P1 TRUE COPY OF PETITION AS O.P.NO.3 OF 2016 DATED 26.11.2015
FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.P.NO.3OF 2016
DATED 02.03.2016 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE REGISTER
SHOWING THE POLITICAL AFFILIATION OF MEMBERS OF
THE PANCHAYAT FOR THE PERIOD 2010-2015
EXHIBIT P4 TRUE COPY OF THE ORDER IN O.P NO.3 OF 2016
DATED 24.05.2017 OF THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF NOTIFICATION DATED 05.06.2007 ISSUED BY
THE 2ND RESPONDENT.
ANNEXURE A: TRUE COPY OF INTERIM ORDER DATED 29.05.2017 IN
W.P(C).NO. 17751 OF 2017 OF THIS HON'BLE COURT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF THE UNDERTAKING GIVEN BY
THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT R1(B): TRUE COPY OF THE NOMINATION PAPER DATED 05.10.2010.
EXHIBIT R1(C): TRUE COPY OF THE TRUE EXTRACT OF THE REGISTER.
EXHIBIT R1(D): TRUE COPY OF THE NOMINATION PAPER FILED BY
THE PETITIONER.
EXHIBIT R1(E): TRUE COPY OF THE LETTER DATED 16.10.2015 FROM
THE PRESIDENT, ERNAKULAM DCC.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
"C.R."
K. Vinod Chandran, J
----------------------------------------
W.P.(C).No.17751 of 2017-T
-----------------------------------------
Dated this the 28th day of June, 2017
JUDGMENT
The writ petition is filed against the order of the Kerala State Election Commission [for brevity "Election Commission"], Exhibit P4, which held that the writ petitioner had defected as provided under Section 3(1)(b) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ["for brevity "Act of 1999"] and, hence, became subject to disqualification. It was further declared that she was disqualified to be a member of the Ramamangalam Grama Panchayat as provided by Section 3(1)(b) and also disqualified for contesting as candidate in an election to any local authority for a period of six years, as provided by Section 4(3) of the Act.
2. The brief facts to be noticed are that the petitioner contested the election to the Council of the Panchayat for the period 2010-15 as an independent candidate, supported by Communist Party of India [for brevity "CPI"] of the Left Democratic WP(C) No.17751 of 2017 - 2 - Front coalition. The petitioner won such election and was continuing in the Council and towards the expiry of the period of the Council, election notification was issued on 07.10.2015 with the last date notified for filing nomination being 14.10.2015. The petitioner filed a nomination on 14.10.2015, within the validity period of the Council of 2010-2015, as a candidate of Indian National Congress [for brevity "INC"] with United Democratic Front [UDF] coalition. Scrutiny was conducted on 15.10.2015 and the petitioner having not withdrawn the nomination on 17.10.2015, it was accepted. The period of the Council in which the petitioner was a member, expired on 31.10.2015 and the election for the next Council was held on 05.11.2015. The votes were counted, the results declared on 07.11.2015 and the petitioner was sworn in as a Member for the next term of 2015-2020 on 12.11.2015. The petitioner was then elected as President of the Panchayat on 19.11.2015. An Original Petition was filed before the Election Commission on 26.11.2015 with a delay of 29 days. The delay was condoned on 06.01.2016 and the petitioner disqualified by the impugned order passed on 24.05.2017.
WP(C) No.17751 of 2017 - 3 -
3. The learned Senior Counsel relied on the statutory provisions to assail the order. The provisions do not commend the disqualification of the petitioner is the short argument, for reason of the term of the Council in which she is alleged to have committed an act of crossing the floor had expired and the Election Commission having been moved after the expiry of the term.
4. The 1st respondent, who was the petitioner before the Election Commission, contended that the petitioner, who was a member of the Committee elected as a part of the LDF coalition, supported by the CPI, had committed defection, by reason of the nomination filed as a candidate of the INC during the term of the earlier Committee, under Section 3(1)(b) of the Act of 1999.
5. The learned Senior Counsel appearing for the petitioner would take me through the relevant provisions of the Act of 1999 and the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 [for brevity "Rules of 2000"] to urge the contention of the Election Commission having no jurisdiction for reason of the term of the Committee having expired WP(C) No.17751 of 2017 - 4 - when the petition was filed. It is argued that the words employed in Section 3(1)(b) of the Act of 1999; of an independent member belonging to any coalition withdrawing from such coalition or joining any political party or any other coalition being disqualified for continuing as a member of that local authority specifically indicates that the disqualification is only with reference to the membership of the Committee in office for a valid term of five years and cannot be extended to a subsequent period for which a fresh election is conducted. It is also argued that sub-section (3) of Section 4 of the Act of 1999 indicates that the disqualification for contesting as a candidate in an election to any local authority would be for a period of six years from the date of the decision of the Election Commission and not prior to that. The petitioner's election prior to the order cannot attract the disqualification.
6. It is also urged that Rule 4A of the Rules of 2000 indicates the necessity of filing of an application within fifteen days from the date of the alleged disqualification. The petitioner having filed the nomination on 14.10.2015, which is alleged to be the ground for disqualification; a petition before the Election WP(C) No.17751 of 2017 - 5 - Commission could have been filed within fifteen days, i.e., on or before 29.10.2015, and in that context the petition would have been filed within the period of validity of the earlier Committee. The petition having been filed after the limitation period, when the petitioner ceased to be a Member of the earlier Committee, the petition itself is not maintainable is the argument. The learned Senior Counsel would also rely on a decision of a learned Single Judge, reported in George P.C. v. Hon'ble Speaker and Another [2016 (2) KHC 137 = 2016 (1) KLT 1004].
7. The learned Standing Counsel for the Election Commission would draw a distinction between the disqualification which is co-terminus with the term of office of a Committee and which extends beyond the term of office. The alleged disqualification is one of inability to continue as member of the Council and to contest an election; which extends to a period of six years, even beyond the term of the elected Committee. The learned Standing Counsel would rely on the decisions reported in Kunjappan v. Rajan [2004 KHC 100 = 2004 (1) KLT 536], Vinodkumar v. Faizal [2010 (1) KLT 35], Krishna Kumar.C. v. WP(C) No.17751 of 2017 - 6 - Kerala State Election Commission, Tvm. and Another [2010 (4) KHC 90 = 2010 (4) KLT 84] and Pavithran v. Nandakumar [2015 (4) KLT 900] to drive home the distinction drawn so as to sustain the order of the Election Commission. With respect to the ground of limitation urged, the learned Standing Counsel places reliance on the decision in Rajendranath v. Gangadas and Others [AIR 1979 SC 566], which holds that when there is a period of limitation provided and the authority also empowered to condone the delay; on such condonation being effected, the period of limitation does not stand extended; but, however, the proceedings are deemed to have been filed within the limitation period.
8. Section 3(1)(b) of the Act of 1999 is extracted hereunder:
"3. Disqualification on ground of Defection.--
(1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act,--
(a) xxx xxx xxx
(b) if an independent member belonging to any coalition withdraws from such coalition or joins any political party or any other coalition, or if such a WP(C) No.17751 of 2017 - 7 - member, contrary to any direction in writing issued by a person or authority authorised by the coalition in its behalf in the manner prescribed, votes or abstains from voting,-
xxx xxx xxx
(c) xxx xxx xxx
he shall be disqualified for being a member of that local authority".
9. The disqualification alleged herein is admitted insofar as the petitioner, who was an independent Member belonging to the LDF coalition during the term of the Committee, submitted a nomination as a candidate of the INC with UDF coalition. The petitioner hence withdrew from the coalition in whose platform she was elected and was continuing as Member and joined another political party in a different coalition. This clearly invites a disqualification and there can be no dispute on the said count.
10. The argument of the petitioner is that the term of the Committee, in which the alleged act was occasioned, being over, she can no longer considered to have been disqualified to sit in the next committee to which a fresh election was held. The WP(C) No.17751 of 2017 - 8 - disqualification can only be with reference to the term of the Committee; which is for five years. Herein it is to be noticed that the disqualification as found by the Election Commission under Section 4(3) of the Act of 1999 extends to six years from the date of decision of the Election Commission. As rightly pointed out by the learned Standing Counsel for the Election Commission, the disqualification is not co-terminus with the term of the Committee and even extends beyond that period. It is also pertinent that the Act and the Rules does not speak of the member being disqualified from the Committee for a particular term and speaks of disqualification in being continued as a member and for a further period of six years being disabled from contesting an election.
11. Kunjappan held that a person who was disqualified to hold office for a period cannot be considered to be a person who is qualified to contest the election. Vinodkumar was a case in which the petitioner sought for a declaration from the Election Commission that in view of the disqualification order passed by the Election Commission there should be a further declaration that the respondent is disqualified and not qualified to be chosen in the WP(C) No.17751 of 2017 - 9 - Panchayat at any level in view of Sections 29(f) and 34(1)(n) of the Kerala Panchayat Raj Act, 1994. This Court found that there is no such requirement since, the effect of disqualification under Section 25(1)(q) is automatic. Both these decisions would not apply in the present case.
12. Krishna Kumar.C. can be relied upon to fortify the submission of the learned Standing Counsel for the Election Commission that the disqualification incurred by cessation of office is not co-terminus with the term of office of the Committee, when it is incurred under Section 3(1)(b) of the Act of 1999. Pavithran was a case in which the Election Commission had taken considerable time in considering the petition filed before it. By that time, the term of office of the Committee, in which the appellants/petitioners were Members, was over and six years had elapsed from the date of the alleged act which invited disqualification. The Division Bench held that the disqualification would apply for six years from the date of decision of the Election Commission.
WP(C) No.17751 of 2017 - 10 -
13. Much reliance has been placed on George P.C. by the learned Senior Counsel appearing for the petitioner. Therein, proceedings were taken by the Speaker of the Legislative Assembly to disqualify a Legislator. Just prior to the date of decision, the Legislator made a request for resignation. The request made by the Legislator for resignation was kept in abeyance and an order passed of disqualification. The order was dated 13.11.2015. The Legislator challenged the said order before this Court. This Court found that a Legislator has a Constitutional right to seek resignation; which has to be necessarily accepted by the Speaker unless it is found to be not voluntary or genuine. In the said case, the Legislator had personally handed over the resignation to the Speaker and there was admittedly no order passed in the said resignation. At the time of hearing, the records were called for, on perusal of which, the Court found an order rejecting the application for resignation on the ground that it was not voluntary or genuine, without any reasons assigned as to how such an assumption was arrived at by the Speaker. WP(C) No.17751 of 2017 - 11 -
14. It was also found that the order disqualifying the Legislator referred to the request for resignation and indicated that the same was kept pending. The rejection of the application for resignation was also on the same day, i.e., 13.11.2015 but after the order on disqualification. It was in such circumstance that the Court held that the resignation is deemed to have been accepted by the Speaker on 12.11.2015 when it was handed over to the Speaker since the subsequent order dated 13.11.2015; rejected as not genuine or voluntary was not supported by reasons. The Legislator having resigned, there was no question of any disqualification being considered, was the finding.
15. This Court does not find any identity of facts in George P.C. and instant case. Further the disqualification, in that case under the Tenth Schedule of the Constitution was co- terminus with the term of the legislature. In the teeth of the applicable rules here, if the petitioner had resigned from the membership and had contested under the banner of INC, then there would have been no question of disqualification. The decision in George P.C. does not help the petitioner. WP(C) No.17751 of 2017 - 12 -
16. It would be too technical a view to hold that the disqualification alleged against a member would have to be agitated in the term of office of the Committee in which such disqualification was occasioned. If that be so, towards the expiry of the term of office the Committee members could indulge in all sort of defection which if not agitated within the term of office, would be rendered useless. There is no such requirement in the rules and the limitation is only for a specific period with the authority empowered to condone the delay. The decision in Rajendranath is apposite in so far as the condonation having the effect of deeming the petition to have been instituted within time.
17. The disqualification is a consequence flowing under Section 3 & 4 of the Act of 1999. Inter alia an independent member belonging to any coalition when withdrawing from such coalition and joining any other political party of any other coalition, he shall be disqualified to be member of that local authority. This does not confine the bar of membership to a particular term of office or to the term of office in which such act is alleged and found. Section 4(1) empowers the State Election Commission to WP(C) No.17751 of 2017 - 13 - decide on the question as to whether a member of a local authority has become subject to disqualification or not when such a dispute arises. Sub-section (3) of Section 4 is the consequence of a decision of disqualification arrived at by the Election Commission. There are two consequences. One, the member would cease to be a member from the date of decision and would be disqualified from contesting an election to any local authority for six years. The petitioner was a member of the local authority when the decision came and that alone attracts the disqualification from being continued as a member. By the mere fortuitous circumstance that before a decision came an election was conducted would not absolve the member of the rigour of disqualification, which again is a corollary to the principle laid down by the Division Bench in Pavithran, that even if six years have elapsed from the time of the alleged act of disqualification there would be a further disqualification for six years from the date of decision. Any other interpretation would do violence to the avowed intention of the Legislature and the plain language used in the statute. Just as Pavithran found that the legislature would not waste its words and WP(C) No.17751 of 2017 - 14 - use any in vain; the Court cannot add or supply words. If the contention of the petitioner is accepted then words would have to be added to the provision to make the disqualification of the member: for the term then in office. The Legislature took into account the laws delays while prescribing the disqualification for a specific period extending beyond the term of office of a Council. The intention clearly is to disqualify a member who has defected from continuing in that committee and in the subsequent committee too, since the disqualification runs for six years, while the term of the committee is 5 years.
The writ petition would stand dismissed, leaving the parties to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]