Kerala High Court
M.V. Benny vs State Election Commission on 2 November, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942
WP(C).No.27690 OF 2016(I)
PETITIONER/S:
M.V. BENNY, AGED 51 YEARS
MANIKATHAN HOUSE, THANNIPUZHA,
OKKAL P.O, ERNAKULAM DIST.
BY ADVS.
SRI.SHAJI THOMAS
SRI.BINU PAUL
SRI.H.KIRAN
SRI.B.RAJESH (KOTTAYAM)
RESPONDENT/S:
1 STATE ELECTION COMMISSION
THIRUVANANTHAPURAM- 695 001
2 ANWAR MUNDATH
S/O ABUBAKER, MUNDETHU HOUSE,
EDAVOOR, ERNAKULAM DIST- 683 544
R1-2 BY ADV. SRI.M.SREEKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.08.2020, ALONG WITH WP(C)No.27750/2016(P), THE COURT ON
02.11.2020 DELIVERED THE FOLLOWING:
W.P.(C)Nos.27690 of 2016 & -2-
27750 of 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942
WP(C).No.27750 OF 2016
PETITIONER/S:
N.O GEORGE, AGED 52 YEARS
NJEZHUNGAN HOUSE, OKKAL.P.O.,
CHELAMATTOM, ERNAKULAM.
BY ADVS.
SRI.SHAJI THOMAS
SRI.BINU PAUL
SRI.H.KIRAN
SRI.B.RAJESH (KOTTAYAM)
RESPONDENT/S:
1 STATE ELECTION COMMISSION
THIRUVANANTHAPURAM-695 001.
2 ANWAR MUNDATH
S/O.ABUBAKER, MUNDETHU HOUSE,EDVOOR,
ERNAKULAM DISTRICT-683 544.
R1-2 BY ADV. SRI.M.SREEKUMAR
OTHER PRESENT:
SRI MURALI PURUSHOTHAMAN- STANDING COUNSEL R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.08.2020, ALONG WITH WP(C).27690/2016(I), THE COURT ON
02.11.2010 DELIVERED THE FOLLOWING:
W.P.(C)Nos.27690 of 2016 & -3-
27750 of 2016
JUDGMENT
Since common issues are raised, these writ petitions were heard together and are being disposed of by this common judgment.
2. W.P.(C).No.27690 of 2016:- The petitioner was an elected member of Ward No.2 of Okkal Grama Panchayat in Ernakulam District, who was elected in the General Election held in October, 2010. The petitioner contested in the election with the symbol 'hand', as a candidate fielded by Indian National Congress (I) [for brevity, 'INC(I)']. There are 16 seats in Okkal Grama Panchayat, out of which, United Democratic Front [for brevity, 'UDF'] coalition secured 13 seats, i.e., INC(I) secured 12 seats and Kerala Congress (M) secured 1 seat. Left Democratic Front [for brevity, 'LDF'] coalition secured 3 seats, all by Communist Party of India (Marxist) [for brevity, 'CPI(M)']. An independent candidate secured 1 seat. As UDF secured majority it formed the Panchayat. In the election to the post of President and Vice President, the 2nd respondent herein was elected as the President and Smt. Mini Shaju was elected as the Vice President. Mini Shaju tendered resignation from the post of Vice President, on 23.7.2014. Thereafter, election to the vacant post of Vice President was notified and a meeting of the members of the Panchayat was convened on 20.8.2014.
W.P.(C)Nos.27690 of 2016 & -4-27750 of 2016 2.1. According to the 2nd respondent, who is the petitioner in O.P.No.103 of 2014 before the Kerala State Election Commission, who is the elected member of Ward No.5 of Okkal Grama Panchayat, another candidate fielded by INC(I), in the Parliamentary Party meeting of INC(I) convened in the presence of District Congress Committee President [for brevity, 'DCC President'], it was unanimously decided to field Smt. Sindhu Teacher, who is the elected member of Ward No.9 of Okkal Grama Panchayat, as candidate for the post of Vice President. DCC President issued whip to all the members of INC(I) to vote in favour of Sindhu Teacher. The whip was served on all the members of INC(I) thorough speed post. A copy of the whip was communicated to the Secretary of the Panchayat. The meeting convened on 20.08.2014 was adjourned to 21.08.2014 for want of quorum. According to the 2nd respondent, this happened because the petitioner herein, who is the respondent in O.P.No.108 of 2014 and some other members of INC(I) abstained from that meeting, in connivance with the members of LDF. They intentionally disobeyed the whip and purposefully abstained from the meeting, colluding with the members of LDF. The matter was reported to DCC President. As directed by DCC President, a meeting of the Parliamentary Party was convened on the very same day at Perumbavoor Tourist Bungalow, in W.P.(C)Nos.27690 of 2016 & -5- 27750 of 2016 the presence of DCC President. The petitioner herein and four others purposefully abstained from the meeting. In that meeting, Sindhu Teacher sought permission to withdraw her candidature, on account of threat from Mini Shaju. The Parliamentary Party decided to field Smt. Viji George as candidate for the post of Vice President and DCC President issued whip to vote in her favour. The whip was served on the members who were present in person and it was served on the members who abstained from that meeting, by affixture. A copy of the whip was communicated to the Secretary of the Panchayat, in compliance of the statutory requirement. The petitioner herein and five others, who were well aware of the whip issued by the political party in the election to the post of Vice President, abstained from the meeting held on 21.08.2014, along with LDF members. In the election held on 21.08.2014, Viji George was elected as the Vice President, with the support of UDF members. Alleging that, the petitioner herein by abstaining from the meetings held on 20.08.2014 and 21.08.2014, committed act of defection and as such he is liable to be disqualified, the 2nd respondent filed O.P.No.103 of 2014 (Ext.P1) before the State Election Commission, under sub-section (1) of Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 [for brevity, 'the Act'], seeking a declaration that the petitioner herein committed W.P.(C)Nos.27690 of 2016 & -6- 27750 of 2016 defection and hence disqualified to continue as a member of Okkal Grama Panchayat; and also a declaration that he is disqualified for a period of six years to contest in any election to Local Self-Government Institutions. By way of amendment of pleadings in O.P.No.103 of 2014, the 2nd respondent herein raised a contention that the conduct of the petitioner herein in abstaining from the meetings, flouting the decision of the political party, amounts to voluntarily abandoning his membership in INC(I).
2.2. On receipt of notice in O.P.No.103 of 2014, the petitioner herein filed a statement of objection (Ext.P2), by contending that the political party never set up Sindhu Teacher or Viji George as Vice President candidate of INC(I) or UDF, and he was never served with any whip issued as per law by the political party or an authorised person of the political party, directing to vote in favour of the Vice President candidate allegedly fielded by the political party. The Parliamentary Party meeting of INC(I) was not convened and Sindhu Teacher was not proposed as Vice President candidate, as alleged in the original petition. The petitioner herein was never informed about the so called meeting of the Parliamentary Party. No whip was served on the petitioner herein, as alleged in the original petition and a copy of the whip was also not communicated to the Secretary of the W.P.(C)Nos.27690 of 2016 & -7- 27750 of 2016 Panchayat. As there was no political decision to field Sindhu Teacher as Vice President candidate of INC(I), she expressed her unwillingness to contest the election scheduled on 20.08.2014. The petitioner herein did not attend that meeting as there was no political decision or whip by an authorised person of the political party, pursuant to the decision of the political party. No Parliamentary Party meeting was held at Perumbavoor Tourist Bungalow on 20.08.2014, as alleged. No intimation regarding convening of any such meeting was communicated to him. He has no knowledge regarding the candidature of Sindhu Teacher or that of Viji George for the post of Vice President. No whip was served on him, by any means including affixture. He has no knowledge regarding the whip allegedly issued by the political party for the election held on 21.08.2014 to the post of Vice President. No such whip was communicated to the Secretary of the Panchayat, as alleged. As per the information furnished on 29.08.2014 under the Right to Information Act, 2005, no copy of the whip was communicated to the Secretary of the Panchayat and the alleged whip was not read over by the Secretary in the meeting. The petitioner herein contended that no disqualification as provided under the provisions of the Act can be attributed on him for the reason that he has not attended the meeting. The candidate allegedly fielded by W.P.(C)Nos.27690 of 2016 & -8- 27750 of 2016 the Political Party was elected to the post of Vice President, without any opposition. The petitioner herein never acted against the policies of the political party or never shown any disloyalty to the political party. He never acted in violation of the decision of the political party, as alleged, and he has not incurred any disqualification, as alleged.
2.3. Before the State Election Commission, O.P.No.103 of 2014 was tried along with connected matters. On the aside of the 2 nd respondent herein, PWs.1 to 3 were examined and Exts.P1 to P10 were marked. On the side of the petitioner herein and the respondent in the receptive original petitions, RWs.1 to 3 were examined and Exts.R1 to R5 were marked. Exts.X1 to X3 were marked through witness. After considering the pleadings and materials on record, the State Election Commission arrived at a conclusion that the conduct of the petitioner herein and the respondent in the receptive original petitions in having abstained from the election meeting held on 20.08.2014 would clearly demonstrate that they became disloyal to the political party which elected them as members. The direction (whip) given by PW2 to attend the election meeting held on 20.08.2014 and to vote in favour of the Vice President candidate nominated by the political party was duly communicated to the petitioner herein and the respondent in the receptive original W.P.(C)Nos.27690 of 2016 & -9- 27750 of 2016 petitions, as provided under sub-rule (2) of Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 [for brevity, 'the Rules']. Though there is no satisfactory evidence regarding the time of refusal to accept the whip sent by post in respect of the meeting held on 21.08.2014, the abstention of the petitioner herein and the respondent in the receptive original petitions from the election meeting on 20.08.2014 defying the direction of the political party, inviting disqualification, is clearly established. Therefore, the State Election Commission in Ext.P3 common order dated 24.06.2016 held that the petitioner herein and the respondent in the receptive original petitions have voluntarily given up their membership from the political party in which they belong, as provided under clause (a) of sub-section (1) of Section 3 of the Act and therefore, they became subject to disqualification for being members of Okkal Grama Panchayat and they are also declared as disqualified for contesting as candidates in an election to any local authorities for a period of six years from the date of Ext.P3 order, as provided by sub-section (3) of Section 4 of the Act.
2.4. Challenging Ext.P3 order of the 1st respondent the State Election commission, in so far as it relates to O.P.No.103 of 2014, the petitioner is before this Court in this writ petition. W.P.(C)Nos.27690 of 2016 & -10- 27750 of 2016 2.5. On 22.08.2016, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel took notice for the 1st respondent State Election Commission and this Court issued urgent notice to the 2nd respondent.
2.6. A counter affidavit has been filed by the 2nd respondent, opposing the reliefs sought for in this writ petition, by contending that, there was no difference of opinion among the members of INC(I) regarding the activity of the 2nd respondent as President of the Grama Panchayat, and the difference of opinion was regarding the activity of Mini Shaju, as Vice President, which had resulted in her resignation without informing the political party or the Parliamentary Party. The 2nd respondent would contend that, the findings of the State Election Commission in Ext.P3 order are based on evidence and materials placed on record and also on sound legal principles. There is clear evidence to show that whip was issued by the competent person, namely, DCC President, and the same was duly served on the petitioner herein, but, he refused to accept the same. The document marked as Ext.P3 before the Commission is a copy of the whip dated 16.08.2014 issued by DCC President. There is ample proof to show that the petitioner herein acted against the direction issued by the political party and he had even admitted that he failed to take part in W.P.(C)Nos.27690 of 2016 & -11- 27750 of 2016 the meeting held on 20.08.2014 and 21.08.2014 for electing the Vice President. The 2nd respondent would contend that, whip was duly served on the Secretary of the Panchayat, as required by the Rules.
3. W.P(C).No.27750 of 2016:- The petitioner was an elected member of Ward No.14 of Okkal Grama Panchayath, in the General Election held in October, 2010. He contested in the election with the symbol 'hand', as a candidate fielded by INC(I). He abstained in the meetings convened on 20.08.2014 and 21.08.2014 to elect Vice President. Alleging that, the petitioner herein, by abstaining from the meetings held on 20.08.2014 and 21.08.2014, committed act of defection and as such he is liable to be disqualified, the 2 nd respondent filed O.P.No.108 of 2014 (Ext.P1) before the State Election Commission, under sub-section (1) of Section 4 of the Act, seeking a declaration that the petitioner herein committed defection and hence disqualified to continue as a member of Okkal Grama Panchayat; and also for a declaration that he is disqualified for a period of six years to contest in any election to Local Self-Government Institutions.
3.1. On receipt of notice in O.P.No.108 of 2014, the petitioner herein filed a statement of objection (Ext.P2), raising contentions similar to that raised in the statement of objection filed in O.P.No.103 of 2014.
W.P.(C)Nos.27690 of 2016 & -12-27750 of 2016 3.2. The State Election Commission in Ext.P3 common order dated 24.06.2016 held that the petitioner herein and the respondent in the respective original petitions have voluntarily given up their membership from the political party in which they belong, as provided under clause (a) of sub-section (1) of Section 3 of the Act and therefore, they became subject to disqualification for being members of Okkal Grama Panchayat and they are also declared as disqualified for contesting as candidates in an election to any local authorities for a period of six years from the date of Ext.P3 order, as provided by sub-section (3) of Section 4 of the Act.
3.3. Challenging Ext.P3 order of the 1st respondent the State Election commission, in so far as it relates to O.P.No.108 of 2014, the petitioner is before this Court in this writ petition.
3.4. On 22.08.2016, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel took notice for the 1st respondent State Election Commission and this Court issued urgent notice to the 2nd respondent.
3.5. On 22.08.2016, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel took notice for the 1st respondent State Election Commission and this Court issued urgent notice to the 2nd respondent. W.P.(C)Nos.27690 of 2016 & -13- 27750 of 2016 3.6. A counter affidavit has been filed by the 2nd respondent, opposing the reliefs sought for in this writ petition, raising contentions similar to that raised in the counter affidavit filed in W.P.(C)No.27690 of 2016.
4. Heard the learned counsel for the petitioner in the respective writ petitions [hereinafter referred to as 'the writ petitioners'], the learned Standing Counsel for the 1 st respondent State Election Commission and also the learned counsel for the 2 nd respondent.
5. Ext.P3 order of the 1st respondent State Election Commission, which is under challenge in these writ petitions to the extent indicated hereinbefore, is a common order passed in the original petitions filed by the 2nd respondent in the respective writ petitions, under sub-section (1) of Section 4 of the Act. O.P.No.103 of 2014 is one filed against the writ petitioner in W.P.(C)No.27690 of 2016 and O.P.No.108 of 2014 is one filed against the writ petitioner in W.P.(C)No.27750 of 2016, alleging that, they abstained from the meetings convened on 20.08.2014 and 21.08.2014 for electing the Vice President of Okkal Grama Panchayat, in connivance with LDF members, contrary to the direction in writing (whip) issued by the political party, and as such they are disqualified for being members of W.P.(C)Nos.27690 of 2016 & -14- 27750 of 2016 that local authority, and are also liable to be disqualified for a period of six years to contest in any election to Local Self-Government Institutions.
6. In Ext.P3 order, the 1st respondent State Election Commission found that Ext.P8 whip issued on 20.08.2014 in respect of the meeting convened on 21.08.2014 for electing the Vice President cannot be taken as served on the writ petitioners and four others, before the date of election. In so far as the meeting convened on 20.08.2014 is concerned, the State Election Commission found that the writ petitioners and four others were not present in the meeting held on 18.08.2014. Ext.P3 whip for the meeting convened on 20.08.2014 for electing the Vice President was sent by speed post and also by courier. Ext.P4 series are the postal receipts. They refused to accept those articles, on 19.08.2014, as evident from Exts.P5(l) to P5(w) returned postal articles and courier articles, and as such there is deemed service of Ext.P3 whip for the meeting convened on 20.08.2014. DCC President, who was examined as PW2, is competent to issue the whip. The writ petitioners and four others were aware of the election meeting held on 21.08.2014 and their abstention from that meeting, defying the direction of the political party, is clearly established. In Ext.P3 order, the State Election Commission held that W.P.(C)Nos.27690 of 2016 & -15- 27750 of 2016 the writ petitioners and four others have voluntarily given up their membership from the political party in which they belong, as provided by clause (a) of sub-section (1) of Section 3 of the Act and therefore, they become subject to disqualification for being members of Okkal Grama Panchayat, and are disqualified for contesting in an election to any local authorities for a period of six years, as provided under sub- section (3) of Section 4 of the Act.
7. The Kerala Local Authorities (Prohibition of Defection) Act was enacted to prohibit defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities. Clause (iva) of Explanation to Section 2 of the Act, inserted by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2012 defines the term 'direction in writing' to mean a direction in writing, signed with date, issued to a member belonging to, or having the support of, a political party, by the person authorised by the political party from time to time to recommend the symbol of the said political party for contesting in election, for exercising the vote favourably or unfavourably or to abstain from voting.
8. Section 3 of the Act deals with disqualification on ground of defection. As per clause (a) of sub-section (1) of Section 3, W.P.(C)Nos.27690 of 2016 & -16- 27750 of 2016 notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 or in the Kerala Municipality Act, 1994 or in any other law for the time being in force, subject to the other provisions of this Act, if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting,- (i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or (ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee; or the Chairman of the Standing Committee; or in a voting on a no- confidence motion against one of them except a member of a Standing Committee, he shall be disqualified for being a member of that local authority. Clause (b) of sub-section (1) of Section 3 deals with an independent member belonging to any coalition and clause (c) of sub-section (1) of Section 3 deals with an independent member not belonging to any coalition.
9. Sub-sections (2) and (3) of Section 3 of the Act, added by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, W.P.(C)Nos.27690 of 2016 & -17- 27750 of 2016 2013, with effect from 10.01.2013, read thus;
"3. Disqualification on ground of defection.- (1). xxx xxx (2) The direction in writing issued for the purpose of clauses
(a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.
(3) Where any dispute arises regarding the direction issued under the Section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid."
10. In exercise of the powers conferred by sub-section (1) of Section 7 of the Act, the Government of Kerala in consultation with the State Election Commission made the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, in supersession of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 1998. Rule 4 of the Rules deals with the manner in which a political party or coalition may give direction to its members. Sub-rule (1) of Rule 4, after its amendment by the Kerala Local Authorities W.P.(C)Nos.27690 of 2016 & -18- 27750 of 2016 (Disqualification of Defected Members) Amendment Rules, 2014, which came into force with effect from 06.08.2014, reads thus;
"4. The manner in which a political party or coalition may give direction to its members.- (1) If a political party or coalition gives any direction in respect of the casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3, it shall be in writing and such a direction shall be given,-
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(ii) In the case of a member who belongs to a coalition or considered to be in it; by the member whom the members of the said coalition and the members considered to be included in it in the local authority concerned elected for the purpose, on majority basis from among themselves."
11. By the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2005, sub-rule (3) of Rule 4 of the Rules was renumbered as sub-rule (2) and the words "Copy of the direction in writing shall also be given to the Secretary" added thereto, at the end. Sub-rule (2) of Rule 4, after its amendment, reads thus;
W.P.(C)Nos.27690 of 2016 & -19-27750 of 2016 "(2) While issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary."
12. The term 'direction in writing' is defined for the first time by inserting clause (iva) of Explanation to Section 2 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013. By the said Amendment Act, sub-sections (2) and (3) were added to Section 3 of the Act. As per sub-section (2) of Section 3, the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.
13. As already noticed, Rule 4 of the Rules deals with the manner in which the political party or coalition may give directions to its members. As per clause (i) of sub-rule (1) of Rule 4, prior to its amendment by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2005, if a political party or coalition gives any direction in respect of casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3 of the Act, it shall be in writing and such a direction shall be W.P.(C)Nos.27690 of 2016 & -20- 27750 of 2016 given in the case of a member who belongs to a political party or is considered to be included in it, by the member whom the members of the said political party and the members considered to be included in it, in the local authority concerned, elect for the purpose, on majority basis from among themselves. After the amendment of clause (i) of sub-rule (1) of Rule 4, by the Amendment Rules, 2005, such direction in writing (whip) shall be issued by the person authorised by the political party from time to time to recommend the symbol of the said political party for contesting in the election, in the manner specified in clause (i). The said clause was amended further by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014. After the amendment by the Amendment Rules, 2005, as per sub-rule (2) of Rule 4, while issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary.
14. In George Elamplakkadu @ Vakkachan Powathil v. A.V. Mathew @ Samkutty Vettupalam and others [2020 (5) KHC 297] this Court held that, the very purpose by which the rule W.P.(C)Nos.27690 of 2016 & -21- 27750 of 2016 making authority had imposed on a further stipulation in sub-rule (2) of Rule 4 to provide a copy of the direction in writing to be given to the Secretary is to ensure existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub- rule (1) of Rule 4. Sub-section (2) of Sction 3 of the Act mandates that a copy of the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the Secretary of the Local Self Government Institution concerned. As per sub-section (1) of Section 4, if any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of the Act (on the ground of defection) a member of that local authority or the political party concerned or a person authorised by it in this behalf may file a petition before the State Election Commission for decision. Serving of a copy of the direction in writing (whip) to the Secretary of the local authority concerned is the only method by which a member of that local authority belonging to any other political party to come to know about the whip.
15. In George Elamplakkadu @ Vakkachan Powathil this Court held further that, the very object of the Act is to prohibit defection among members of local authorities in the State and to W.P.(C)Nos.27690 of 2016 & -22- 27750 of 2016 provide for disqualification of the defecting members for being members of the local authorities. As per sub-section (2) of Section 4 of the Act, the State Election Commission shall, after making such enquiry as it deems necessary, decide whether such member has become subject to such disqualification or not and its decision shall be final. As per sub-section (2) of Section 5, the State Election Commission, while trying a petition filed under sub- section (1) of Section 4 of the Act have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matter enumerated thereunder in clauses (a) to (e). What is envisaged under sub-section (2) of Section 4 is an enquiry to find out whether a member of a local authority has become subject to disqualification on the ground of defection under the provisions of clause (a) or clause
(b) or clause (c) of sub-section (1) of Section 3 of the Act. Clause (a) of sub-section (1) of Section 3 deals with two distinct grounds on which a member of local authority belonging to any political party become subject to disqualification on the ground of defection, i.e., (i) for voluntarily giving up his membership of such political party; and
(ii) for acting contrary to the direction in writing (whip) issued by such political party. In a petition filed under sub-section (1) of Section 4, on the ground that a member of a local authority belonging to any W.P.(C)Nos.27690 of 2016 & -23- 27750 of 2016 political party acted contrary to the direction in writing (whip) issued by such political party, the petitioner has to place on record a copy of the direction in writing (whip) issued by the political party; and in the enquiry conducted under sub-section (2) of Section 4, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4. As per sub-section (3) of Section 4 of the Act, where the State Election Commission decides that a member has become subject to disqualification under sub-section (2), he shall cease to be a member from the date of such decision and shall be disqualified for contesting as a candidate in an election to any local authority for six year from that date. When the Statute prescribes serious consequence once the State Election Commission decides that a member has become subject to disqualification under sub-section (2) of Section 4, the provisions under clause (i) of sub-rule (1) of Rule 4 has to be scrupulously followed while giving the direction in writing; and such direction has to be given to the members concerned and also the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4.
W.P.(C)Nos.27690 of 2016 & -24-27750 of 2016
16. In George Elamplakkadu @ Vakkachan Powathil this Court held that, sub-section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules, which require that a copy of the direction in writing (whip) shall also be given to the Secretary, is mandatory in nature. In a petition filed under sub-section (1) of Section 4, on the ground that a member of a local authority belonging to any political party acted contrary to the direction in writing (whip) issued by the political party, the petitioner has to place on record a copy of the direction in writing (whip) issued by the political party; and in the enquiry conducted under sub-section (2) of Section 4, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also to the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4.
17. In the instant case, the document marked as Ext.P3 is the direction in writing (whip) issued by PW2, the DCC President, whereby all the members of Okkal Grama Panchayat set up or supported by INC(I) and returned at the election are directed to vote in favour of Sindu Teacher, the candidate proposed by INC(I), for the post of Vice President, in the election scheduled on 20.08.2014. The writ W.P.(C)Nos.27690 of 2016 & -25- 27750 of 2016 petitioners and four others abstained from that meeting. For want of quorum that meeting was postponed to 21.08.2014, as provided under Rule 6 of the Kerala Panchayat Raj (Election of President and Vice President) Rules, 1995. In the original petitions filed under sub- section (1) of Section 4 of the Act, it is alleged that the writ petitioners and four others acted contrary to the direction in writing issued by the political party to which they belong and hence disqualified for being a member of the Panchayat on ground of defection. The conduct of the writ petitioners and four others in abstaining from the meeting, flouting the decision of the political party, amounts to voluntarily abandoning their membership in INC(I).
18. As per sub-section (2) of Section 3 of the Act, the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned. Rule 4 of the Rules deals with the manner in which a political party or coalition may give direction to its members. As per clause (i) of sub- rule (1) of Rule 4, substituted by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, with effect from 06.08.2014, in case of a member belonging to a political W.P.(C)Nos.27690 of 2016 & -26- 27750 of 2016 party or a member considered to be included in that political party, the direction in writing shall be issued by the person authorised by the political party from time to time to recommend the symbol of the political party concerned to that member, for contesting in the election. Further, the said direction shall be in the letter head of that political party. Sub-rule (2) of Rule 4, while issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixure it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary.
19. As per sub-section (3) of Section 3 of the Act, where any dispute arises regarding the direction issued under the Section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in the election shall be deemed to be valid.
20. As already noticed, in the General Election held in October, 2010, out of 16 seats in Okkal Grama Panchayat, UDF secured 13 W.P.(C)Nos.27690 of 2016 & -27- 27750 of 2016 seats, i.e., INC(I) secured 12 seats and Kerala Congress (M) secured 1 seat. As UDF secured majority it formed the Panchayat. The 2 nd respondent herein was elected as the President and Mini Shaju was elected as the Vice President. Mini Shaju tendered resignation from the post of Vice President, on 23.7.2014. Therefore, a meeting was convened on 20.8.2014, in order to elect a new Vice President. In that meeting, Sindhu Teacher, who contested the General Election in October, 2010 as INC(I) candidate, was fielded as the candidate for the post of Vice President, and PW2 DCC President issued Ext.P3 whip to all the members of INC(I) to vote in her favour. The writ petitioners and four others, refused to accept the postal articles, on 19.08.2014, which is evident from Exts.P5(l) to P5(w) returned postal articles, and as such, there is deemed service of whip for the meeting convened on 20.08.2014, as rightly found by the State Election Commission in the impugned order. The meeting convened on 20.08.2014 was adjourned to 21.08.2014 for want of quorum, since the writ petitioners and four others abstained from that meeting.
21. Ext.P3 whip is one issued by PW2, the DCC President, in the letter head of INC(I). PW2, in his capacity as DCC President, is the person authorised by INC(I) to recommend the symbol of that political party for contesting in the election. These facts are not disputed by W.P.(C)Nos.27690 of 2016 & -28- 27750 of 2016 the writ petitioner in W.P.(C)No.27690 of 2016, who was examined as RW1. In Ext.P2 statement of objection filed in O.P.No.103 of 2014 and O.P.No.108 of 2014, the case of the writ petitioners is that INC(I) never set up Sindhu Teacher or Viji George as Vice President candidate and they were never served with any whip issued as per law by the political party or an authorised person of the political party, directing them to vote in favour of the Vice President candidate allegedly fielded by the political party. During cross examination, RW1 has deposed that, violation of any direction issued by DCC President pursuant to the decision taken by the District Congress Committee, would amount to defection. According to RW1, there was no decision by the political party to field Sindhu Teacher as the official candidate for the post of Vice President, in the election meeting scheduled on 20.08.2014. Therefore, the abstention of the writ petitioners and four others in the election meeting held on 20.08.2014 would not amount to an act of defection, by way of violation of the whip.
22. Disqualification on ground of defection, under the second limb of clause (a) of sub-section (1) of Section 3 of the Act will be attracted if a member of local authority belonging to any political party, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in W.P.(C)Nos.27690 of 2016 & -29- 27750 of 2016 this behalf in the manner prescribed, votes or abstains from voting, in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee. Clause (iva) of Explanation to Section 2 of the Act defines 'direction in writing' to mean a direction in writing, signed with date, issued to a member belonging to, or having the support of, a political party, by the person authorised by the political party from time to time to recommend the symbol of the said political party for contesting in election, for exercising the vote favourably or unfavourably or to abstain from voting. In the written objection filed in O.P.No.103 of 2014 and O.P.No.108 of 2014, the writ petitioners have no case that, their abstention in the election meeting held on 20.08.2014 was on the strength of a direction in writing (whip) issued by PW2, the DCC President, directing the members of INC(I) to abstain form that election meeting.
23. As per clause (i) of sub-rule (1) of Rule 4, prior to its substitution by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, for the information of the members, the contents of the direction in writing shall be read over by the member, who shall be elected by the members belonging to the political party and the members considered as included in the W.P.(C)Nos.27690 of 2016 & -30- 27750 of 2016 political party jointly, based on majority from among themselves, and the direction so read shall be deemed to have given directly to the members. In any case, in the absence of the member elected by majority or if that member refuses, another member belonging to the same party shall read over the direction in writing. As per clause (iii) of sub-rule (1) of Rule 4, if any dispute arises between the member elected on majority, as provided in clause (i) of sub-rule (1), and the political party concerned, the direction given as aforesaid shall be deemed to be valid.
24. By the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, which came into force with effect from 06.08.2014, the requirement in clause (i) of sub-rule (1) of Rule 4 of the Rules that the contents of the direction in writing shall be read over to the members belonging to the political party and the members considered as included in the political party is dispensed with. By the said Amendment Rules, clause (iii) of sub-rule (1) of Rule 4 is omitted. Before omission of clause (iii) of sub-rule (1) of Rule 4, sub-section (3) is added to Section 3 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013, with effect from 10.01.2013, which provides that, where any dispute arises regarding the direction issued under the Section between the political W.P.(C)Nos.27690 of 2016 & -31- 27750 of 2016 party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid. Therefore, the question as to whether there was a meeting of the Parliamentary Party and a decision to field a candidate for the post of President or Vice President are not at all relevant in an enquiry conducted by the State Election Commission, under sub-section (2) of Section 4 of the Act, in order to decide whether a member has become subject to disqualification, on the ground of defection by acting contrary to the direction in writing (whip) issued by the person authorised by the political party, especially after the amendment of clause (i) of sub-rule (1) of Rule 4 of the Rules. In the case of a member belonging to a political party and a member considered as included in a political party, once the issuance of a direction in writing (whip) by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election, in terms of clause (iva) of Section 2 and clause (a) of sub-section (1) of Section 3 of the Act and clause (i) of sub-rule (1) of Rule 4 of the Rules, is established the State Election Commission need not examine W.P.(C)Nos.27690 of 2016 & -32- 27750 of 2016 the internal activities of that political party leading to the issuance of such a whip. As already noticed, even before the addition of sub- section (3) to Section 3 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013, clause (iii) of sub- rule (1) of Rule 4 of the Rules, which was in force till its omission with effect from 06.08.2014, provided that, if any dispute arises between the member elected on majority, as provided in clause (i) of sub-rule (1), and the political party concerned, the direction given as aforesaid shall be deemed to be valid. In that view of the matter, the contention of the writ petitioners that, since the 2nd respondent herein failed to prove Exts.X1 and X2 minutes, which were marked subject to proof, Ext.P3 whip issued by PW2 cannot be treated as a valid whip and as such, their abstention in the election meeting held on 20.08.2014 will not amount to disqualification on the ground of defection for violating Ext.P3 whip issued by PW2, can only be rejected as untenable and I do so.
25. The writ petitioners would contend that a copy of Ext.P3 whip was never communicated to the Secretary of Okkal Grama Panchayat, as per the mandate of sub-section (2) of Section 3 of the Act, read with sub-rule (2) of Rule 4 of the Rules, and as such no disqualification on the ground of defection in relation to violation of W.P.(C)Nos.27690 of 2016 & -33- 27750 of 2016 whip is attracted. Moreover, the Secretary of the Grama Panchayat was not examined before the State Election Commission in order to prove that a copy of Ext.P3 whip was served on him.
26. Before the State Election Commission, Ext.P3 whip issued by PW2, the DCC President, dated 16.08.2014, was marked through PW1, the 2nd respondent herein. As evident from the certified copy of Ext.P3 whip made available for the perusal of this Court by the learned Standing Counsel for the State Election Commission, the said document is one obtained by PW1 under the Right to Information Act, 2005. It is one addressed to the Secretary of Okkal Grama Panchayat for information and necessary action. The endorsement made at the top (right-hand corner) of Ext.P3 whip bears the date 19.08.2014. As per the endorsement made at the bottom (right-hand corner), Ext.P3 whip was handed over to the Head Clerk in the Office of the Returning Officer and Assistant Executive Engineer, PWD Roads Division, Perumbavoor, on 20.08.2014. During cross examination, PW1 has stated that he received Ext.P3 whip from the Panchayat. In the re- examination the only question put forward was whether Ext.P3 whip was issued to the members. The oral testimony of PW1 that he received Ext.P3 whip from the office of the Panchayat stands un- rebutted. The endorsements made on Ext.P3 whip obtained by PW1 W.P.(C)Nos.27690 of 2016 & -34- 27750 of 2016 under the Right to Information Act, coupled with the oral testimony of PW1, shows that a copy of that whip was given to the Secretary of Okkal Grama Panchayat, as provided under sub-section (2) of Section 3 of the Act, read with sub-rule (2) of Rule 4 of the Rules. Further, the oral testimony of PW2, the DCC President, that a copy of Ext.P3 whip was served on the Secretary of the Grama Panchayat and also on the Returning Officer stands unchallenged. When Ext.P3 whip, with the endorsements made on 19.08.2014 and 20.08.2014, is one obtained by PW1 under the Right to Information Act from the office of the Panchayat, the oral testimony of PWs.1 and 2, which stands unchallenged, is sufficient to hold that a copy of that whip was given to the Secretary of the Grama Panchayat, as per the requirements of sub-section (2) of Section 3 of the Act, read with sub-rule (2) of Rule 4 of the Rules. Therefore, the contention of the writ petitioners that Ext.P3 whip was never communicated to the Secretary of Okkal Grama Panchayat, as per the mandate of sub-section (2) of Section 3 of the Act, read with sub-rule (2) of Rule 4 of the Rules, and as such no disqualification on the ground of defection in relation to violation of whip is attracted, can only be rejected as untenable and I do so.
27. The writ petitioners would contend that their conduct in abstaining from the election meeting held on 20.08.2014 will not W.P.(C)Nos.27690 of 2016 & -35- 27750 of 2016 amount to an act of voluntarily giving up their membership in the political party, i.e., INC(I). They never crossed the floor and joined hands with the rival group or garnered support from the rival group. There was only one candidate for the post of Vice President on 20.08.2014 and thereafter, on 21.08.2014. After the election, INC(I) continued in power. RW2, the Vice President of Perumbavoor Block Committee and also RW3, the Secretary of Okkal Mandalam Congress Committee, deposed that the writ petitioners are still continuing as members of of the Executive Committee of Permubavoor Block Congress (I) Committee and that they are still active workers. Therefore, none of the essential ingredients that are necessary to infer that the writ petitioners have voluntarily given up their membership in the political party are present in the cases on hand.
28. Disqualification on ground of defection, under the first limb of clause (a) of sub-section (1) of Section 3 of the Act, will be attracted if a member of local authority belonging to any political party voluntarily gives up his membership of such political party.
29. It is to check erosion of the values in democracy the Tenth Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. The Tenth Schedule to the Constitution of India deals with disqualification W.P.(C)Nos.27690 of 2016 & -36- 27750 of 2016 on the ground of defection of a member of either House of the Parliament and that of a member of the Legislative Assembly or the Legislative Council of a State. The constitutional validity of the Constitution (Fifty-second Amendment) Act, 1985, in so far as it seeks to introduce Tenth Schedule to the Constitution was under challenge before a Constitution Bench of the Apex Court in Kohoto Hollohan v. Zachillhu [(1992) Supp. 2 SCC 651]. The Apex Court observed that, "the object underlying the provisions in the Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a member of the House, on the grounds of disqualification specified in paragraph 2 of the Tenth Schedule." The Apex Court observed further that, "a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it W.P.(C)Nos.27690 of 2016 & -37- 27750 of 2016 which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Paragraphs 43 and 44 of the judgments read thus;
"43. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.
44. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival. Intra party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things.W.P.(C)Nos.27690 of 2016 & -38-
27750 of 2016 Griffith and Ryle on "Parliament, Functions, Practice and Procedure" (1989 Edn. page 119) say:
"Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy."
29. In Ravi S. Naik v. Union of India [(1994) Supp. 2 SCC 641] the Apex Court examined the scope of the words 'voluntarily giving up membership' and it was held that the words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the member ship of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. W.P.(C)Nos.27690 of 2016 & -39- 27750 of 2016
30. Later, a Constitution Bench of the Apex Court in Rajendra Singh Rana v. Swami Prasad Maurya [(2007) 4 SCC 270] approved the dictum laid down in Ravi S. Naik. Paragraph 49 of the judgment reads thus;
"49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule. ......."
31. In Joseph K.M. v. Babychan Mulangasserry and others [2015 (1) KHC 111] a Division Bench of this Court held that the expression 'defection' as such is not defined in the Kerala Local Authorities (Prohibition of Defection) Act. But the Legislature has left the disqualification to be decided on the defined conduct of the member. Going by Section 3 of the Act, a member can be disqualified if he has 'voluntarily given up' the membership of the political party to which he belongs or acts in defiance of a whip or direction issued by that political party. The intention of the legislature is that, a member who has violated the whip or has voluntarily given up the membership W.P.(C)Nos.27690 of 2016 & -40- 27750 of 2016 of the political party to which he belongs shall be disqualified. Therefore, the disqualification for voluntarily giving up the membership of the political party to which one belongs is not dependent on any violation of the whip. It is not necessary to hold that the member has violated the whip in order to conclude that he has voluntarily given up the membership of the political party to which he belongs. Therefore, grounds for disqualification under the first and second limbs of Clauses (a) and (b) of Sub-section (1) of Section 3 of the Act are distinct and are not interlinked.
32. The writ petitioners would contend that, in order to draw an inference that they have voluntarily given up their membership in the political party, the 2nd respondent has to prove the decision taken by the political party to field Sindhu Teacher as the official candidate in the election meeting held on 20.08.2014. There was no such decision in Ext.X1. On the other hand, as evident from Ext.R1(d) minutes, in the meeting of the Parliamentary Party held on 20.08.2014 it was decided to abstain from the election scheduled on 20.08.2014, since no decision has been taken, after convening the Parliamentary Party meeting, as to the Vice President candidate and since no direction in this regard has also been revived. The said meeting was attended by 6 out of 11 INC parliamentary party W.P.(C)Nos.27690 of 2016 & -41- 27750 of 2016 members. Therefore the writ petitioners are bound by that decision and they have only obeyed that decision of the political party by abstaining from the election meeting held on 20.08.2014.
33. In Babychan v. State Election Commission [2013 (3) KHC 248], a decision relied on by the learned counsel for the writ petitioners, a learned Single Judge of this Court held that, there is no hard and fast rule that merely for the reason that one of the members of a political party decides to move a no-confidence motion against an office bearer of the same party, it amounts to voluntarily giving up the membership of the political party. If that is the situation no one will be a in a position to protest against any illegality committed by such office bearers. Therefore, in addition to the moving a resolution of no- confidence motion there should be something more than the same. In Ravi S. Naik [(1994) Supp. 2 SCC 641] the Apex Court held that even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership. Therefore a conclusion can be arrived at only on the basis of inferences. It is not in dispute that making such an inference from a set of facts has drastic consequences. There should be concrete proof that the members have acted against the directions of the Congress Party (INC). The Election W.P.(C)Nos.27690 of 2016 & -42- 27750 of 2016 Commission finds that acting against the instructions of the DCC President amounts to acting against the political party. Can such a view be taken will be the question. It is in evidence that the petitioners had met the representatives of the political party on the previous day and had discussions. But no decision could be taken in the matter. What is the authority of DCC President in the matter and what is the extent of control he has over the members is not evident. Definitely the letters he had issued does not amount to a whip. If the bye-laws of the INC party prescribes that the members are to obey the instructions of the DCC President, the Election Commission would have been justified in coming to such a conclusion. Such materials are not available in the case. Viewed in that back ground, this Court held that the Election Commission had proceeded to consider irrelevant materials to draw an inference, while coming to the conclusion that the petitioners have defected from the party. They have a right to move a no-confidence motion against the President which does not require the mandate of the Congress party.
34. In Joseph K.M. [2015 (1) KHC 111] a Division Bench of this Court, while dismissing the writ appeal arising out of Babychan [2013 (3) KHC 248] held that, the provisions under the Tenth Schedule of the Constitution and that under the Kerala Local W.P.(C)Nos.27690 of 2016 & -43- 27750 of 2016 Authorities (Prohibition of Defection) Act are intended to curb unprincipled and unethical political defection. In order to draw an inference that respondents 1 to 3 therein have voluntarily given up membership of the political party, there must be concrete proof that they have acted in defiance of any valid directions of the political party. The said giving up of membership should be established by positive, reliable and unequivocal evidence. The fact that a member has voluntarily given up membership of the political party for all intent and purpose so as to incur disqualification under Section 3 of the Act is to be determined on appreciation of materials on record. In the absence of any such proof, the finding in Ext.P10 order that respondents 1 to 3 therein moved the no-confidence motion against their own party without the knowledge and consent of the Congress Party or the DCC President and their above conduct would amount to voluntarily giving up their membership of the party, is per se arbitrary and perverse. Therefore, the Division Bench held that the learned Single Judge rightly set aside Exhibit P10 order passed by the State Election Commission.
35. In Joseph K.M. this Court was dealing with a case in which the appellant and respondents 1 to 3 therein were the elected members of Manimala Grama Panchayat in Kottayam District, who W.P.(C)Nos.27690 of 2016 & -44- 27750 of 2016 were all members of Indian National Congress (INC), which is part of the coalition United Democratic front (UDF). On 08.11.2010, with the support of all the elected members of INC as well as other elected members forming part of the coalition UDF, the appellant was elected to the post of the President of Manimala Grama Panchayat. Subsequently, respondents 1 to 3 with the support of other elected members of the coalition moved a no-confidence motion against the appellant. The no-confidence motion was tabled for discussion on 28.07.2011. Respondents 1 to 3 voted in favour of the no-confidence motion and ousted the appellant from the post of the President. The appellant filed O.P.Nos.26 of 2011, 27 of 2011 and 28 of 2011 seeking a declaration that respondents 1 to 3 have become subject to disqualification on the ground of defection as provided by Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The 1st respondent, the 1st petitioner in the writ petition, filed O.P.Nos. 31 of 2011 and 32 of 2011 seeking a declaration that the appellant and one Smt. Valsala, who is the elected member of Ward No.10, have become subject to disqualification on the ground of defection under Section 3 of the Act. The 5 th respondent, the additional 3rd respondent in the writ petition, filed O.P.Nos.34 of 2011, 35 of 2011 and 36 of 2011 seeking a declaration that respondents 1 to 3 have become W.P.(C)Nos.27690 of 2016 & -45- 27750 of 2016 subject to disqualification on the ground of defection under Section 3 of the Act. The State Election Commission found that, respondents 1 to 3 have moved no-confidence motion against their own party President without the knowledge and consent of the INC or the President of the District Congress Committee (DCC) and the 1st respondent has also contested for the post of President against the official candidate of INC and respondents 2 and 3 herein supported him in that election. The above conduct of respondents 1 to 3 would abundantly prove that they had voluntarily given up their membership of the party. The Commission also found that there is non-compliance of clause (i) of sub-rule (1) of Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, as amended by SRO No.913/95, and as such the second limb of clause (a) of sub- section (1) of Section 3 of the Act in relation to violation of whip is not attracted. Therefore, by Ext.P10 order the State Election Commission allowed O.P.Nos.26 of 2011, 27 of 2011, 28 of 2011, 34 of 2011, 35 of 2011 and 36 of 2011 and declared that respondents 1 to 3 are disqualified for being members of Manimala Grama Panchayat and they are also declared as disqualified to contest as candidates in an election to any Local Authority for 6 years from the date of order, as provided by sub-section (3) of Section 4 of the Act. Insofar as W.P.(C)Nos.27690 of 2016 & -46- 27750 of 2016 O.P.Nos.31 of 2011 and 32 of 2011 filed by the 1 st respondent are concerned, the Commission found that the contention raised therein that, the appellant and Smt. Valsala have become subject to disqualification on the ground of defection under Section 3 of the Act, on account of violation of the direction issued by the whip of the Parliamentary Party is totally untenable. Therefore, the State Election Commission dismissed O.P. Nos.31 of 2011 and 32 of 2011. Aggrieved by Ext.P10 order passed by the State Election Commission respondents 1 to 3 approached this Court in W.P.(C)No.26153 of 2012. By judgment dated 18.07.2013 the learned Single Judge set aside Ext.P10 order and held that respondents 1 to 3 shall remain as elected members of Manimala Grama Panchayat and shall exercise all such powers. The learned Single Judge held that the decisions of this Court in Varghese v. Kerala State Election Commission [2009 (3) KLT 1], Dharma Mani v. Parassala Block Panchayat [2009 (3) KLT 29], etc., relied on by the State Election Commission in Ext.P10 order, cannot be read as laying down a principle that, supporting a no-confidence motion against a member of the same political party would amount to voluntarily giving up membership of that party. In all those cases there is a finding by the Election Commission that the persons who are alleged to have been W.P.(C)Nos.27690 of 2016 & -47- 27750 of 2016 disqualified or defected had the support of the opposition. Therefore, the learned Single Judge held that, in Ext.P10 order the State Election Commission had proceeded to consider irrelevant materials to draw an inference that respondents 1 to 3 have defected from their political partly. Challenging the said judgment of the learned Single Judge, the appellant filed writ appeal before the Division Bench.
36. In Joseph K.M., before the Division Bench, the appellant contended that, disloyalty to the political party to which a member belongs is the criterion for determining whether he is entailing disqualification on the ground of defection and violation of whip is not necessary to attract or entail such disqualification. Further, unseating an elected President of one's own party is the greatest form of disloyalty and voluntary giving up membership of that political party. Per contra, respondents 1 to 3 contended that their conduct in expressing no-confidence on the leader, without taking the aid or support of any opposition party and without any floor-crossing or shifting of political loyalty would not constitute defection in terms of Section 3 of the Act. There was no destabilisation in the Panchayat and after the no-confidence motion UDF is still in power. Further, the findings of the State Election Commission in Ext.P10 order that, after the no-confidence motion the 1 st respondent contested for the post of W.P.(C)Nos.27690 of 2016 & -48- 27750 of 2016 President against the official candidate of Congress Party with the support of respondents 2 and 3 and that, during the pendency of the Original Petitions the 1st respondent resigned from that post and paved way for the Kerala Congress (M) member to become president are not supported by any pleadings in the Original Petition filed before the Election Commission. Therefore, the judgment of the learned Single Judge interfering with Ext.P10 order passed by the State Election Commission is perfectly legal and no interference is called for.
37. In Joseph K.M., the Division Bench noticed that, the DCC President issued Ext.P18 direction to all the elected Congress Party members of Manimala Grama Panchayat to vote against the no- confidence motion and it was also made clear in Ext.P18 that, those who violate the direction contained therein will be treated as having voluntarily given up their membership of the Congress Party. The DCC President, who was examined as PW2, has deposed that he had issued Ext.P18, directing the Congress members in the Panchayat to vote against the no-confidence motion which was placed for discussion on 28.7.2011 and that the said motion was moved without the knowledge or consent of the Congress Party. Respondents 1 to 3 contended that the appellant, after his election to the post of the President of Manimala Grama Panchayat, was involved in W.P.(C)Nos.27690 of 2016 & -49- 27750 of 2016 mismanagement and was ineffective. In the meeting of the Congress Parliamentary Party of Manimala Grama Panchayat held on 12.07.2011 the 1st and 2nd respondents were elected as the Parliamentary Party leader and Whip, respectively. Then the appellant was directed to resign from the post of President. As he did not oblige the Congress Parliamentary Party and UDF decided to move a no- confidence motion against the appellant. Respondents 1 to 3 and other members of UDF signed that motion and the Chief Whip issued direction to all the elected members of INC to support the no- confidence motion. But, the appellant and another elected member by name Valsala defied the above direction and voted against the no- confidence motion and thus committed defection. According to them, the no-confidence motion was moved as per the decision of the Congress Parliamentary Party and UDF and while doing so they have acted in terms of the whip of Congress Parliamentary Party. Therefore, they have neither voluntarily abandoned their membership from INC nor committed any defection for being disqualified from the membership of the Grama Panchayat. They neither supported LDF nor received the support of LDF. After no-confidence motion UDF is still in power in Manimala Grama Panchayat. Respondents 1 to 3 have a further case that, as per the agreement arrived at among the coalition W.P.(C)Nos.27690 of 2016 & -50- 27750 of 2016 partners of UDF, the presidentship was allotted to Congress members for the first three years and the remaining term of two years has been given to the nominee of Kerala Congress (M). The 1st respondent as RW1 deposed that, the decision to remove the appellant from the post of President was taken by Congress Parliamentary Party and that PW2 was not competent to give any direction to the members of the Panchayat as there was no supporting decision taken by the DCC. RWs.2 to 8, RW.10 and RW.11 were examined to support the case of respondents 1 to 3 that DCC did not take any decision to vote against the no-confidence motion and that the majority of the Congress Parliamentary Party members as well as the UDF Parliamentary Party members decided to move such a motion and to remove the appellant from the post of President. Hence they have not committed any defection.
38. In Joseph K.M., the Division Bench noticed that the activity of the appellant which was found to tantamount to withdrawal from the coalition is stated to be signing of the notice in the no confidence motion. Even in the matter of an elected representative belonging to a political party such signing of the notice of no confidence motion per se is not declared under the Act to be an activity attracting disqualification on the ground of defection. It is only W.P.(C)Nos.27690 of 2016 & -51- 27750 of 2016 the specific overt act of voting or abstaining from voting contrary to any written directions issued by the political party on a no confidence motion that tantamounts to defection. If that is the legal position with regard to a member of the Panchayat belonging to a political party, a member of a coalition cannot be logically said to have committed an act of withdrawal from the coalition which has the serious consequence of rendering such a member disqualified from being a member of the Panchayat, on the mere ground that he or she has signed the notice of no confidence motion. 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 LDF 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 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, to some extent, restricts the free choice of the voter (member of the Panchayat) in this regard. Such restriction first came to be W.P.(C)Nos.27690 of 2016 & -52- 27750 of 2016 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 contingencies. In the ultimate analysis voting is nothing but a mode of expression of the opinion. Such restrictions 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.
W.P.(C)Nos.27690 of 2016 & -53-27750 of 2016
39. In Joseph K.M., the Division Bench noticed that, the finding of the State Election Commission is that, respondents 1 to 3 moved no-confidence motion against their own party without the knowledge and consent of Congress Party or DCC President and their above conduct would abundantly prove that they have voluntarily given up their membership of the party. The fact that respondents 1 to 3 have supported the no-confidence motion against the appellant is not in dispute. Respondents 1 to 3 moved no-confidence motion along with 5 other members of UDF. When the said motion was tabled for discussion, respondents 1 to 3 along with 6 other members of UDF supported the same and the appellant was ousted from the post of the President of Manimala Grama Panchayat. Therefore, the no- confidence motion was supported by 9 out of 11 members of UDF and the appellant and one Valsala voted against the said motion. The Division Bench noticed that, in Exhibits P3 to P5 original petitions the appellant has no case that the no-confidence motion moved by respondents 1 to 3 was supported by any member of the opposition party. Admittedly there was no destabilisation of power in the Grama Panchayat and UDF continued in power. The Election Commission has already found in Ext.P10 order that the second limb of clause (a) of sub-section (1) of Section 3 of the Act in relation violation of whip is W.P.(C)Nos.27690 of 2016 & -54- 27750 of 2016 not attracted in the case of respondents 1 to 3. Though, even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up membership of the political party, to persuade the Election Commission or this Court to draw such an inference there must be concrete proof that the member has acted in defiance of any valid directions of that political party. As the finding of the Election Commission in Ext.P10 that respondents 1 to 3 moved the no- confidence motion against their own party without the knowledge and consent of the Congress Party or the DCC President is not based on any any reliable materials on record, the learned Single Judge was right in his conclusion that the Election Commission proceeded to consider irrelevant materials to draw such an inference. The Division Bench held that, what constitute defection is deserting the political party and not deserting the leader of that political party. An act of a member expressing no confidence in the leader of the political party would not amount to voluntarily giving up of his membership of that political party. When a member expressed his no-confidence in the leader of the political party such act by itself would not amount to an act of floor crossing or political disloyalty.
W.P.(C)Nos.27690 of 2016 & -55-27750 of 2016
40. In Joseph K.M., the Division Bench of this Court was dealing with the question as to whether when a member of a political party decides to move a no-confidence motion against an office bearer of the same party whether it amounts to voluntarily giving up the membership of that political party. In the order of the State Election Commission, which was impugned before this court, it was found that respondents 1 to 3 therein moved no-confidence motion against their own party without the knowledge and consent of the Congress party or the DCC President and their above conduct would amount to voluntarily giving up their membership of the party. The learned Single Judge held that decisions of this Court in Varghese v. Kerala State Election Commission [2009 (3) KLT 1], Dharma Mani v. Parassala Block Panchayat [2009 (3) KLT 29], etc., cannot be read as laying down a principle that, supporting a no- confidence motion against a member of the same political party would amount to voluntarily giving up membership of that party. The Division Bench held that in the absence of any concrete proof that respondents 1 to 3 therein have acted in defiance of the directions issued by any political party, the finding of the Tribunal in Ext.P10 order is per se arbitrary and perverse and therefore the learned Single Judge rightly set aside Ext.P10 order. What constitutes defection is W.P.(C)Nos.27690 of 2016 & -56- 27750 of 2016 deserting the political party and not deserting the leader of that political party. An act of a member expressing no confidence in the leader of the political party would not amount to voluntarily giving up of that political party.
41. In the instant cases, as evident from Ext.P3, the DCC President issued a whip dated 16.08.2014 to all the members of INC(I), including the writ petitioners, directing them to vote in favour of Sindhu Teacher, in the election meeting scheduled on 20.08.2014. As rightly found by the Tribunal in the impugned order, the writ petitioners and four others, refused to accept the postal articles containing Ext.P3 whip on 19.08.2014, which is evident from Exts.P5(l) to P5(w) returned postal articles. The said envelops sent by speed post bears the name and address of PW2, the DCC President, who is the person authorised by the political party to recommend symbol of the political party for contesting in election, i.e., a person duly authorised by the political party to issue the direction in writing (whip). After refusing to accept the postal envelops containing Ext.P3 whip on 19.08.2014, the writ petitioners along with four others convened a meeting on 20.08.2014, as if they are yet to receive the direction in writing (whip) issued by the DCC President, and took a decision to abstain from the election meeting scheduled on W.P.(C)Nos.27690 of 2016 & -57- 27750 of 2016 20.08.2014. The conduct of the writ petitioners and four others in abstaining from the election, after conducting such a meeting as if the DCC President has not issued any direction in writing (whip) for the election meeting scheduled on 20.08.2014, cannot be equated to an act of a member of political party expressing no-confidence in the leader of the political party by moving a no-confidence motion or voting in favour of such motion. The conduct of the writ petitioners in abstaining from the election meeting held on 20.08.2014 amounts to voluntarily giving up their membership in the political party. The fact that the writ petitioners and four others have not joined hands with the rival group or that, even after the election the political party INC(I) continue in power or that, the writ petitioners are still continuing as members of the Executive Committee of Permumbavoor Block Congress (I) Committee are immaterial and of no consequence. The writ petitioners who belong to INC(I) have to be loyal to the political party and the moment they become disloyal they would become subject to disqualification on the ground of voluntarily giving up their membership from the political party. As rightly found by the State Election Commission in Ext.P3 order, the conduct of the writ petitioners in having abstained from the election meeting held on 20.08.2014 clearly demonstrates that they became disloyal to the W.P.(C)Nos.27690 of 2016 & -58- 27750 of 2016 party which elected them as members. By that conduct they have voluntarily given up their membership in the political party, as provided under clause (a) of sub-section (1) of Section 3 of the Act and they became subject to disqualification, as found in Ext.P3 order. The reasoning of the State Election Commission in Ext.P3 order cannot be said to be perverse or patently illegal, warranting interference of this Court under Article 226 of the Constitution of India.
42. In Lizy Valsalan v. Suja Salim and another [2015 (3) KHC 968] a Division Bench of this Court held that the decision making process of the State Election Commission need be interfered only in cases where the decision is either illegal or is in violation of the principles of natural justice or that the finding of fact is so perverse that no reasonable person can arrive at such a finding. Even if a different view is possible on a set of facts, the same cannot be a reason to arrive at a different finding.
In the result, these writ petitions fail and they are accordingly dismissed. No order as to costs.
Sd/-
ANIL K. NARENDRAN, JUDGE bkn/-
W.P.(C)Nos.27690 of 2016 & -59-27750 of 2016 APPENDIX OF WP(C) 27690/2016 PETITIONER'S/S EXHIBITS:
EXHIBITP1 TRUE PHTOCOPY OF THGE PETITION
(OPNO.103/2014) FILED BY THE 2ND
RESPONDENT BEFORE THE 1ST RESPONDENT
EXHIBIT P2 TRUE PHTOCOPY OF THE OBJECTION DATED 27-
10-2014 SUBMITTED BY THE PETITIONER
EXHIBIT P3 TRUE PHTOCOPY OF THE COMMON ORDER DATED
24-06-2016 IN OP NO.103/2014 AND OTHER
CONNECTED CASES
EXHIBIT P4 TRUE PHTOCOPY OF THE WHIP DATED 20-08-2014
ISSUED BY THE D.C.C. PRESIDENT FOR THE
ELECTION MEETING HELD ON 21-08-2014
EXHIBIT P5 TRUE PHTOCOPY OF THE LETTER DATED 16-8-
2014 ADDRESSED TO THE SECRETARY AND SERVED
TO THE CLERK, SUB ROADS DIVISION, PWD
PERUMBAVOOR
W.P.(C)Nos.27690 of 2016 & -60-
27750 of 2016
APPENDIX OF WP(C) 27750/2016
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE PETITION (OP
NO.108/2014) FILED BY THE 2ND RESPONDENT
BEFORE THE 1ST RESPONDENT.
EXHIBIT P2 TRUE PHOTOCOPY OF THE OBJECTION DATED
27.10.2014 SUBMITTED BY THE PETITIONER.
EXHIBIT P3 TRUE PHOTOCOPY OF THE COMMON ORDER DATED
24.06.2016 IN OP NO.108/2014 AND OTHER
CONNECTED CASES.
EXHIBIT P4 TRUE PHOTO COPY OF THE WHIP DATED
20.08.2014 ISSUED BY THE D.C.C PRESIDENT
FOR THE ELECTION MEETING HELD ON
21.08.2014.
EXHIBIT P5 TRUE PHOTOCOPY OF THE LETTER DATED
16.08.2014 ADDRESSED TO THE SECRETARY AND
SERVED TO THE CLERK, SUB ROADS DIVISION,
PWD, PERUMBAVOOR.