Kerala High Court
Usha Vijayan vs Kerala State Election Commission on 20 May, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
WA NO. 1993 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 05.112024 IN WP(C)
NO.31465 OF 2024 OF HIGH COURT OF KERALA
APPELLANT(S)/WRIT PETITIONER:
USHA VIJAYAN,
AGED 54 YEARS
D/O. PADMANABHAN, ADICHUMAKKAL VEEDU, MORCAUD,
KOOVAPALLI P.O., IDUKKI, PIN - 685590
BY ADVS.
AMAL KASHA
T.B.HOOD
M.ISHA
RESPONDENT(S)/RESPONDENT:
1 KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033
2 PROF. M.J. JACOB,
S/O. JOSEPH, MUNDANCKAL HOUSE, KUDAYATHOOR P.O.,
IDUKKI, PIN - 685590
BY ADV DEEPU LAL MOHAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2025, ALONG WITH WA.2036/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
WA NO. 2036 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 05.11.2024 IN WP(C)
NO.31470 OF 2024 OF HIGH COURT OF KERALA
APPELLANT(S)/PETITIONER:
USHA VIJAYAN,
AGED 54 YEARS
D/O. PADMANABHAN, ADICHUMAKKAL VEEDU, MORCAUD,
KOOVAPALLI P.O., IDUKKI, PIN - 685590
BY ADVS.
AMAL KASHA
M.ISHA
T.B.HOOD
RESPONDENT(S)/RESPONDENT:
1 KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033
2 ANJALEENA,
W/O. SIJO, VARAKALLIL, KANJAAR,
KUDAYATHOOR P.O., IDUKKI, PIN - 685590
BY ADV DEEPU LAL MOHAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2025, ALONG WITH WA.1993/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
3
JUDGMENT
[WA Nos.1993/2024, 2036/2024] AMIT RAWAL, J.
1. Two writ appeals have been preferred against the judgment dated 05.11.2024 arising out of two writ petitions bearing Nos.31465 of 2024 and 31470 of 2024 challenging the order of State Election Commission. Two petitions have been preferred for disqualifying the appellant
- writ petitioner, of having voluntarily abandoned the membership and joined the other party after having been elected as a member of Panchayat on the party ticket, one by the District President of the political party Kerala Congress (M) (P.J.Joseph Group) and the other by another member of the council. Both the petitions were contested by the appellant - petitioner and after contest, the State Election Commission accepted the petitions by removing the appellant - petitioner from the post of member of Panchayat and further barring her to contest the election for a period of 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 4 six(6) years. Writ petitions against the said order have been dismissed and in that background, the writ appeals have been preferred.
2. Succinctly the facts in brief for adjudication of the lis are as under:
In December, 2020, appellant contested the election as a member of Kudayathoor Panchayat under the 'Chenda' symbol allotted to the Kerala Congress (M) P.J.Joseph Group, which is a constituent of the United Democratic Front (UDF). Later she was elected as the president of the Panchayat. On 31.01.2022, she left the UDF and joined the rival coalition -
Left Democratic Front (LDF). The aforementioned act gave a cause of action to the District President of political party to issue written instructions to the appellant - petitioner to resign from the post of the President of Panchayat. Similarly, one Anjaleena belonging to Indian National Congress and an elected member of Panchayat also filed O.P.No.3 of 2022 before the Kerala State Commission for declaration of 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 5 disqualification of the appellant on account of having abandoned the membership and defected.
3. Despite having been communicated with the aforementioned information, appellant-petitioner did not step down, resulted into issuance of notice of no-confidence motion in March 2022. However, on account of non- fulfillment of majority, no-confidence motion failed. In other words, out of thirteen(13) members only seven(7) members attended the meeting. Two(2) among them abstained. Having left with no other choice, on 20.04.2022, the District President, Prof.M.J.Jacob preferred O.P.No.7 of 2022 before the Kerala State Election Commission for disqualification of appellant - petitioner on account of having defied the whip as changing the party amounting to voluntary abandonment of membership in the political party. The grounds in the order of State Election Commission, raised before this court and Single Bench are common, therefore are not reproduced to avoid repetition and summarized hereinbelow:
2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 6 I. Kerala Congress (M) P.J. Joseph Group is not a registered political party and therefore, the provisions of Kerala Local Authorities (Prohibition of Defection) Act, 1999 was not applicable. Kerala Congress (M) is a recognised State Party with symbol of 'Two Leaves', whereas the dispute with regard to the two parties which emanated from the Kerala Congress (M) Group was under dispute and by judgment of this Court, both the parties were given separate symbol for contesting the election and in the absence of political party, which defected the Kerala Congress (M) Group by becoming a Kerala Congress (M) P.J.Joseph Group in the absence of registration, could not, without recording the satisfaction of the political party, as the president issued directions to step down or pass no- confidence motion.
II. There is no evidence to establish the decision of political party and therefore the direction 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 7 of the president was on account of his own lapse by any sufficient reasons. Kerala State Election Commission abdicated in not recording any finding regarding the provisions of section 3 of the Anti- defection Act, 1999.
III. There are material contradictions in the pleadings regarding the name of the political party. Service of letter directing the appellant to resign from the post of President had also not been established and in support of the contention, relied upon the judgment of this Court [2015 (5) KHC 133] in Sandeep M.T. and Others v. Kerala State Election Commission and Others to contend that there has to be sufficient evidence to indicate that the members have voted in favour no- confidence motion contrary to the directions issued by the political parties. In other words, the decision of political party was sine qua non for stepping down or attract the provisions of the Kerala Local 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 8 Authorities (Prohibition of Defection) Act, 1999. IV. Praveena Ravikumar v. State Election Commission [2024 (2) KHC 184] has been cited to contend that in the absence of refusal to receive the notice of the communication of political party though would amount to service but cannot be said to be acted upon until and unless there is a compliance of the law.
4. On the other hand, learned counsel appearing on behalf of the Kerala State Election Commission as well as the petitioners before the Election Commission, in support of the order of the Election Commission as well as of the Single Bench contended that the act and conduct of the appellant - petitioner in changing the alliance with the other party amounted to defection and abandonment of the membership. She did not act according to the whip of the party which is a mandatory requirement as provided under Section 3(1)(a) of the 1999 Act. There has been compliance 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 9 of provisions of Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, which empowers the political party to give directions to its member to step down. Having failed to adhere both the directions of not attending the no-confidence motion as well as stepping down the post of President, amounted to abandonment and violation of whip attracting the provisions as mentioned above and thus urged this Court for dismissal of the writ appeals with exemplary cost.
5. We have heard the learned counsel for the parties and appraised the paper books.
6. For adjudication of the lis aforementioned, it would be expedient to extract Section 3 of the 1999 Act. The same reads as under:
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) if a member of a local authority belonging to any 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 10 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 a 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 an voting on a no-confidence motion against any one of them expect a member of a Standing Committee;
(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 member, contrary to any direction in writing issued by a person or authority authorised by the coalition in this behalf in the manner prescribed, votes or abstains from Voting, -
(i) in a meeting of a Municipality, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or
(ii) in a meeting of a Panchayat in an election of its President, Vice-President, a member of a Standing 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 11 Committee or the Chairman of the Standing Committee; or in an voting on a no-confidence motion against any one of them except a member of a Standing Committee;
(c) if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority.
(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 this 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.
7. As per the provisions of Section 3(1)(a), it is evident that if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 12 directions 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 in the meeting of Municipality, in an election of its Chairperson, Deputy chairperson, a member of Standing Committee or the Chairman of a Standing Committee, in a meeting of 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 any one of them except a member of Standing Committee, is disqualified on the ground of defection.
8. Sub-section (2) of Section 3 prescribes that the direction issued in writing for the purpose of Clause (a) and (b) shall be given to the members concerned in the manner as may be prescribed. In the instant case, there is no dispute with regard to the receipt of the directions issued by the political party through its President duly authorised to step down from the post of the President of Panchayat but 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 13 the appellant-petitioner did not adhere. The aforementioned cause of action arose in favour of the political party as the appellant - petitioner had joined LDF from the other party which would tantamount close to the defection much less abandonment of membership as well as having not acted to the whip of the political party which is a mandatory requirement of law as per the provisions of 1999 Act. The contention that the non-receipt of the notices of no- confidence motion have not only been explicitly pondered by the State Election Commission as well as by the Single Bench found to be against the appellant - petitioner is concerned, it is settled law that while sitting in a writ court as well as Intra court appeal, finding of fact and law arrived at by the State Election Commission when the parties have led in extensive evidence, courts cannot assume the role of an appellate court by sitting in the arm chair and re-appreciate and re-examine the evidence until and unless certain material contradiction is found out, which is conspicuously wanting in the present 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 14 case. In this view of the matter, we are of the view that both appeal sans merit.
9. Argument with regard to the non registration of the party which had been bifurcated from the main party would pale into insignificance for the reason that appellant - petitioner had contested the election on the basis of the symbol of the party which was also not registered. Thus cannot be permitted to approbate and reprobate in the same manner by accepting one part of it and assailing the other one.
There is no illegality and ambiguity in the judgment of the Single Bench dismissing the writ petitions by upholding the order of State Election Commission. Accordingly, these writ appeals stand dismissed.
Sd/-
AMIT RAWAL, JUDGE Sd/-
MURALEE KRISHNA S., JUDGE nak 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 15 APPENDIX OF WA 2036/2024 PETITIONER EXHIBITS Exhibit P3(a) TRUE ENGLISH TRANSLATION OF EXT. P3 AFFIDAVIT Exhibit P4(a) TRUE ENGLISH TRANSLATION OF EXT. P4 DEPOSITION Exhibit P5(a) TRUE ENGLISH TRANSLATION OF EXT. P5 DEPOSITION Exhibit P6(a) TRUE ENGLISH TRANSLATION OF EXT. P6 DEPOSITION Exhibit P7(a) TRUE ENGLISH TRANSLATION OF EXT. P7 AFFIDAVIT Exhibit P8(a) TRUE ENGLISH TRANSLATION OF EXT. P8 DEPOSITION 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024 16 APPENDIX OF WA 1993/2024 PETITIONER EXHIBITS Exhibit P3(a) TRUE ENGLISH TRANSLATION OF EXT P3 AFFIDAVIT Exhibit P4(a) TRUE ENGLISH TRANSLATION OF EXT P4 DEPOSITION Exhibit P5(a) TRUE ENGLISH TRANSLATION OF EXT. P5 DEPOSITION Exhibit P6(a) TRUE ENGLISH TRANSLATION OF EXT. P6 AFFIDAVIT Exhibit P7(a) TRUE ENGLISH TRANSLATION OF EXT P7 DEPOSITION Exhibit P10(a) TRUE ENGLISH TRANSLATION OF EXT. P10 LETTER Exhibit P11(a) TRUE ENGLISH TRANSLATION OF EXT. P11 MINUTES