Kerala High Court
Jiji Thomas vs The Kerala State Election Commission on 26 September, 2024
WPC No.26132 of 2024 1 2024:KER:71527
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
WP(C) NO. 26132 OF 2024
PETITIONERS:
1 JIJI THOMAS, AGED 49 YEARS
W/O. THOMAS, THACHARUKUDIYIL HOUSE,
MANDAPAM P.O., CHITTARIKKAL VIA,
KASARGOD DISTRICT, PIN - 671326
2 JIJI P.J., AGED 53 YEARS
S/O. JOSEPH, PUTHIYAPARAMBIL HOUSE,
KAMBALLUR P.O., CHERUPUZHA, VIA,
KASARGOD DISTRICT, PIN - 670511
3 VINEETH T. JOSEPH, AGED 45 YEARS
S/O. JOSEPH, THENGUMPALLIL HOUSE,
KANNIVAYAL P.O.,
KASARGOD DISTRICT, PIN - 670511
4 DETTY FRANCIS, AGED 54 YEARS
W/O. FRANCIS, KANDANCHIRAYIL,
CHITTARIKKAL P.O.,
KASARGOD DISTRICT, PIN - 671326
BY ADVS.
NISHA GEORGE
BY SRI.GEORGE POONTHOTTAM (SR.)
REGINALD VALSALAN
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION,
JANAHITHAM, TC-27/6(2),
VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM
REPRESENTED BY SECRETARY, PIN - 695033
WPC No.26132 of 2024 2 2024:KER:71527
2 JOSEPH MUTHOLI, AGED 59 YEARS
S/O.GEORGE, RESIDING AT MUTHOLI HOUSE,
CHITTARIKKAL P.O., NEELESWARAM,
KASARGOD DISTRICT, PIN - 671326
BY ADVS.
BY SRI.DEEPU LAL MOHAN, SC
BY SRI.K.RAMAKUMAR
JOBY JACOB PULICKEKUDY
ANIL GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.08.2024, THE COURT ON 26.09.2024 DELIVERED THE FOLLOWING:
WPC No.26132 of 2024 3 2024:KER:71527
"C.R."
MOHAMMED NIAS C.P., J.
-----------------------------------------------
WP(C)No.26132 of 2024
---------------------------------------------
Dated this the 26th day of September 2024
JUDGMENT
The writ petitioners challenge Ext.P10 common order dated 2.7.2024 passed by the Kerala State Election Commission, allowing OP Nos.6/2021, 7/2021 8/2021 and 9/2021 filed by the second respondent herein.
2. The second respondent filed the above original petition against the writ petitioners contending that the respondents had submitted their nomination for the General Election to the Local Bodies held during December 2020, as members of the Revolutionary Marxist Party of India (hereinafter referred to as RMPI). They also allege that the State Secretary of RMPI had requested the Returning Officer of East Eleri Grama Panchayat, in writing to allot their party symbol "Foot Ball" to the respondents based on which the respondents were allotted the symbol "Foot Ball" and had contested as a candidate of RMPI, which is the sheet anchor of the case of the second respondent. The East Eleri Grama Panchayat had a total of 16 Ward members out of which, 7 members belong to the WPC No.26132 of 2024 4 2024:KER:71527 Indian National Congress (INC), 4 to RMPI, 2 to CPIM, and 3 to independent members. They contend that after the election, arrangements were made by the Indian National Congress with RMPI to rule the Panchayat. Accordingly, the Panchayat was ruled by INC members with the active support of the RMPI. The post of the President of the Panchayat was then allotted to Indian National Congress and Adv. Joseph Mutholi, the second respondent herein elected from Ward No.16, who belongs to INC was allowed to contest as the President of the Panchayat and the said arrangement was made known to all the members of INC and RMPI. It is also stated that earlier arrangements were made for the rule of the Panchayat by the member of the INC, but as a matter of fact, the RMPI through the State Secretary, who is the authorised person and who is empowered to grant the symbol of the candidate, has given written instructions by way of whip (direction in writing) dated 29.12.2020, to all the members belonging to the RMPI including the respondents. The said whip directed the RMPI elected ward members, and the respondents to attend the meeting and cast their valid vote in favour of the petitioner on 30.12.2020. The whip was duly served in terms of Sub- rule (2) of Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, and the Secretary had acknowledged the same.
3. On 30.12.2020, when the meeting was called for the election of the President of the Grama Panchayat, the second respondent Adv. Joseph Mutholi, stood as a candidate for the post of President, based on the arrangement WPC No.26132 of 2024 5 2024:KER:71527 aforesaid. However, the writ petitioners and three others of RMPI voted in favour of the opposite candidate and defeated the official candidate of INC as the INC candidate could only obtain 7 votes and the opposite candidate obtained 9 votes, with the active support of the writ petitioners, the respondents before the Election Commission. This according to the Petitioner in the election petition shows that the respondents therein had withdrawn from the RMPI and defied the valid direction given by the State Secretary of RMPI, and accordingly, they have voluntarily abandoned their membership from the RMPI which fielded them as candidates in the general election. They have also voluntarily abandoned and given up their membership in RMPI and joined another party moving with the support of opponents in the Panchayat against the will of RMPI and INC and had cast their vote against the direction in the election to the post of President and accordingly committed defection going by the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short 'the Act'). On these grounds the petitions were filed before the Election Commission, OP Nos.6/2021, 7/2021 and 8/2021.
4. Objections were filed by the respondents to the Election Petition, contending that they had contested as independents and they had nothing to do with RMPI. They asserted that they contested as independent candidates under the Democratic Development Front (DDF), a non-political party. It is also stated that the respondents did not have any leaning towards any political party and WPC No.26132 of 2024 6 2024:KER:71527 specifically denied the contention that they were members of the RMPI. They further state that they have never applied for or obtained membership in the said party or any other political party and that the RMPI had not fielded any candidate in the said elections in any of the 16 wards of the Panchayat. It is stated that during the 2015 Elections, the candidates sponsored by the DDF had contested under the symbol "Foot Ball" and had administered the Panchayat. However, the symbol" Foot Ball" has been allotted to the RMPI on a priority basis during 2020. The DDF had therefore resolved to contest the election of the sponsored candidates under the 'Foot Ball' symbol. As against the 12 candidates of the DDF, regarding 4 candidates candidates with the same names were set up and one such candidate had sought for the symbol 'Foot Ball', and therefore the issue was deliberated by the DDF, and taking note of the fact that the RMPI had not fielded any candidate in the Grama Panchayat, resolved to request them to recommend the symbol 'Foot Ball' to 4 candidates, namely the respondents in the election petition. The request was accepted and a request letter was issued, based on which the symbol of 'Foot Ball' was allotted to the 4 candidates.
5. It is also their contention that the respondents had contested against the members of the INC party who had supported RMPI and the same itself will show that the petitioners were not part of the RMPI in any manner. Thus contending that they were not bound by any whip as they were independent members who had no knowledge of any whip and that there was no cause of WPC No.26132 of 2024 7 2024:KER:71527 action to file the original petitions before the Commission and was prayed for rejection of the election petitions.
6. The Commission framed the following issues for consideration:
"14. The following points arise for consideration
(i) Whether respondents are contested and elected as candidates of RMPI or as independents?
(ii) Whether the respondents have disobeyed the direction of their political party as alleged?
(iii) Whether the respondents have voluntarily given up their membership from RMPI as alleged?
(iv) Whether respondents have committed defection as provided under section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 as alleged?
7. After considering the oral evidence PW1 to PW7, RW1 to RW3, documents Exhibits A1 to A14, B1 to B6 and X1 to X5, the Commission found that the State Secretary of RMPI had recommended the official symbol of RMPI namely 'Foot Ball' to the respondents as per Exhibits A1 to A4 letters dated 22.11.2020 and that there was an arrangement between the INC and RMPI for sharing the post of President of the Panchayat and accordingly, the petitioner who belonged to INC was nominated to contest the election as President and thus WPC No.26132 of 2024 8 2024:KER:71527 arrangement was made known to all the members of the INC and RMPI. The documents in proof of service on the whip, marked as Exts.A5 to A8, and through affixture through Exts.A9 to A15 were marked, and on the above premises, it was found that the respondents had colluded and voted in favour of one Sri. James Panthammakkal, who secured 9 votes as against 7 votes secured by the petitioner before the Commission. The Commission also relied on the nomination papers of the respondents produced as Exts.X2 to X5 to hold that, the State Secretary of the RMPI had recommended the symbol "Foot Ball" and that the RMPI being a registered unrecognized political party eligible to get a symbol on priority basis, and that the symbol "Foot Ball" was allotted to them on the priority basis in 2020. Since it was admitted by the respondents who contested the election with the symbol "football", the Commission relied on paragraphs 8(i) and (ii) of the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017, (hereinafter referred to as the Symbols Order) and found that the respondents contested the election as candidates of RMPI and that the entries in the party affiliation register prepared based on the declaration of the respondents cannot be taken as a determinative factor.
8. The case of the respondents in the election petition that they contested the election as independent candidates under DDF was also not accepted as the respondents had no case that they were part of the DDF coalition and such a declaration was given under Rule 3(20(b) of the Kerala Local WPC No.26132 of 2024 9 2024:KER:71527 Authorities (Disqualification of Defected Members) Rules, 2000. The respondents also did not have a case that they convened a meeting of the elected members belonging to the DDF to elect a member as Chief Whip of the DDF to give directions as provided under Rule 4(1) (ii) of the Rules. The Commission also relied on the explanation to S.3 of the Act that stipulates that an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was [set up or given support] as a candidate for the election, and therefore by virtue of subsection (3) of Section 3 of the Act the respondents are to be considered as members of the political party RMPI. The Election Commission also found that there was no dispute that the INC had secured the majority of the seats in East Eleri Grama Panchayat during the general election 2020 and that the RMPI political party had supported the INC in electing Panchayat President among members of the INC, but the respondents thwarted it by colluding and conniving with rival political parties and independents. The Commission also relied on the judgment of this Court in Lissy Valsalan v. Suja Salim and another [2015 (3) KHC 968] which held that where a member of a political party is aware of the decision taken by that party but failed to act in accordance with the said direction, it amounts to voluntarily abandoning the membership of the political party entailing disqualification under Section 3(1) of the Act. In view of the above, the Commission found that the respondents had committed defection within the meaning of Section 3(1)(a) of the Act, 1999, and allowed the original petitions, and declared the respondents disqualified for WPC No.26132 of 2024 10 2024:KER:71527 continuing as elected members of the Panchayat and further declared them disqualified from contesting as candidates in any election to the local authorities for a period of six years by the common order that is challenged in the writ petition.
9. Heard the learned Senior counsel Sri. Goeroge Poonthottam, instructed by Adv.Nisha George appearing for the writ petitioners, learned Senior counsel. Sri.K.Ramakumar, instructed by Sri.Joby Jacob Pulickekudy, appearing for the second respondent and Sri.Deepu Lal Mohan, the learned Standing Counsel for the Election Commission.
10. The main contention raised by Sri. George Poonthottam, the learned Senior counsel, is that the writ petitioners could not have been treated as members of the RMPI as they were not its members and the evidence of PW4, the State Secretary of RMPI also showed the same. The petitioners had contended that they were independent candidates contesting under the banner of DDF and their only allegiance was to DDF and not to any other party. It is also argued that the register maintained by the Secretary, which is a statutory record showing the affiliation of the petitioners was ignored. It is their further contention that the Commission went wrong in considering the writ petitioners as members of the RMPI party, which case even the State Secretary of that party did not have while being examined. It is also pointed out that the nomination papers showed, that they were contesting as independent candidates and that the symbol was allotted WPC No.26132 of 2024 11 2024:KER:71527 to them in the light of the letter issued by the Secretary, but there was no mention of either the RMPI party nor did the letter state the petitioners were candidates of RMPI party. It is also argued that Rule 8 of the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017, was completely misread by the Commission and that the people had voted for them by considering their affiliation to DDF and against the stand of the INC party, and if they were the members of the RMPI party, they would not have contested against INC party, as they belong to the same coalition. Since the petitioners are not members of the RMPI or the coalition in which the RMPI is a party, they could not have been treated as members of the RMPI. The pleadings in the election petition were that the writ petitioners were members of the RMPI but the finding of the Election Commission is that they must be treated as members of the RMPI party based on the explanation to S.3 of the Act which shows that the finding of the Election Commission is in variance with the pleadings in the instant case. He also relied on the judgment of this Court in Mathew Joseph v. Joseph John (2024 KHC 752).
11. Learned Senior counsel for the petitioners also submits that the writ petitioners had contested against CPI, INC and independent candidates, and therefore, they could not have been treated as part of a coalition that comprises INC and the RMPI. He also submits that the nomination, declaration given after the election and the register maintained by the Panchayat also showed that they WPC No.26132 of 2024 12 2024:KER:71527 were independent candidates without any political allegiance, and therefore the finding of the Election Commission is flawed.
12. Learned Senior counsel Sri.K.Ramakumar appearing for the second respondent, the petitioner before the Election Commission submits that on the admitted fact that the petitioners had used the "football" symbol, a priority symbol allotted to the RMPI, it has to be held that they were set up by RMPI going by the explanation to Section 3(3) of the Act. Placing reliance on the regulations in the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017, it is argued that, read along with the evidence of PW4, the State Secretary of RMPI who also deposed of the writ petitioners making a request before him for allotting the symbol it has to be held that the writ petitioners must be considered as members of the political party RMPI. If that be so, they were bound by the whip issued on behalf of the said party defied of which resulted in defection and the consequences thereof under Section 3 of the Act. Learned senior counsel also argues that no grounds are taken or exist for issuing a writ of certiorari for challenging the order of the Commission. He also places reliance on the judgments of the Hon'ble Supreme Court in Bharati Airtel Limited v. A.S.Raghavendra [(2024) 6 SCC 418], Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023 KHC 6774), Subhash Desai v. Principal Secretary, Government of Maharashtra (2023 KHC 6547), Syed Yakoob v. K.S.Radhakrishanan (1964 KHC 457) Sindhu Anilkumar v. Kerala WPC No.26132 of 2024 13 2024:KER:71527 State Election Commission, Thiruvananthapuram [2024 (2) KHC 193 also the judgments of this Court in Kumari Mohanam K.P. v. Corporation of Thiruvananthapuram and others [2019 (4) KHC 538], Ramakrishnan v. Union of India and others [2017 (1) KHC 801], Rama Bhaskaran v. Kerala State Election Commission and others [2018 (2) KHC 126], Vasanthakumari v. Kerala State Election Commission (2023 KHC 9416) and Deepak K. v.Kerala State Election Commission [2023 (7) KHC 141]. He submits that the findings of the Commission are on the basis of the pleadings and evidence on record and the same cannot be faulted in any manner. After having taken the support of RMPI and approached the electorate on that basis canvassing votes also and winning the election, any act of disloyalty to the said party will result in defection under the Act. It was not a case where the symbol allotted to the writ petitioners was a free symbol, but a priority symbol allotted to RMPI. It is contended that the writ petition challenging the order of the Election Commission cannot be maintained either on facts or on law, and prays for the dismissal of the writ petition.
13. Learned Senior counsel argues that the arrangement/alliance, support or set-up all has to be viewed at the prepoll stage because it is on that basis that they are canvassing votes from the electorate. The importance of symbols cannot be overlooked as the symbols have considerable influence in an election. The relevance of the symbol that was allotted has been clearly noted by the Election Commission in the impugned order, the fact that it was on the WPC No.26132 of 2024 14 2024:KER:71527 request of the writ petitioners that they got the symbol which was also testified by PW4, the State Secretary of RMPI clinches the issue according to the Senior Counsel. The shifting of loyalties post-election results in disloyal conduct attracting disqualification.
14. Learned Standing Counsel for the Election Commission Sri. Deepu Lal Mohan arguing on the basis of the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017 argues that as per the notification issued by the State Election Commission dated 6.11.2020, as per Table IV of the same, which deals with the free symbols for the independent candidates which include the symbols allotted to the Registered unrecognized Political Parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala, symbols were allotted from this state to independent candidates where no candidates are set up by the Registered unrecognized Political Parties concern under the said table. It is seen that Serial No. 33, "football" is allotted to the RMPI on a priority basis. It is also argued on the basis of the allotment order which also defines recognized political parties, registered unrecognized Political Parties, and State parties in the State of Kerala, the classification of symbols is dealt with within paragraph 3 while the allotment of symbols in paragraph 4. He submits that paragraph 8 deals with when a candidate shall be deemed to be set up by a political party, it is stated that if a political party recommends the symbol of that party to a candidate who has not WPC No.26132 of 2024 15 2024:KER:71527 mentioned the name of the political party or its symbol in the nomination paper and has mentioned a symbol from the list of free symbols in the nomination paper, he is eligible to get the symbol of that party allotted to him. It is submitted that it was on the basis of the same that the symbol of RMPI was allotted to the respondents and therefore, the candidates who used that symbol must be taken to be deemed to be set up by a political party, in which even going by explanation to Section 3(3) of the Act must be taken that a candidate belongs to that party. If that be so, and the writ petitioners belong to RMPI, they were bound by the whip, which was admittedly defied, and therefore the order of the Commission finding that there is defection leading to disqualification cannot be said to be wrong in any manner. Learned counsel also relied on the judgments of this Court in Mohandas K.P. v. State Election Commission, Thiruvananthapuram and others [2009(4) KHC 935], Sheeba James v. T.C.George and another [2012 (3) KHC 174] and WA No.1338 of 2012 dated 7.1.2013. Since the petitioners were set up by RMPI and got the symbol at their request, the explanation of the read along with the Symbols Order, there is no doubt that the petitioners must be taken as belonging to RMPI.
15. Learned Senior counsel for the writ petitioners Sri. George Poonthottam in his reply submits that paragraph 8 of the Symbols Order applies only to free symbols and the Election Commission has clearly misread paragraph 8 of the Symbols Order. It is also argued that the member in the election petition WPC No.26132 of 2024 16 2024:KER:71527 was that the writ petitioners were members of RMPI whereas the finding of the Commission is that they must be considered as RMPI members as they were set up by RMPI, and therefore the finding is contrary to the pleadings. In such a case, finding is perverse and a writ of certiorari is certainly to be issued. He also relies on the passages from the commentary on the Constitution of India by Durgadas Basu for submitting that in cases of erroneous exercise of jurisdiction and failing to take into consideration evidence or matter which ought to have been considered, the writ of certiorari will follow. He also reiterates that even the State Secretary, Sri. Venu examined as PW4 did not have a case that the petitioners were members of RMPI, the finding of the Election Commission is clearly erroneous and against the pleadings and evidence on record.
16. Heard both sides and perused records.
17. The Writ petitioners contested the 2020 General Election to Local Self Government Institutions from Ward Nos.1, 14, 13 & 3 respectively of East Elari Grama Panchayat by submitting Exts.P1, P1(a), P1(b) & P1(c) nomination papers (produced and marked as Exhibits- X2, X3, X4 and X5 before the State Election Commission). In column 10 of said nomination papers, the petitioners have declared that they are not associated with any Political Party and that they are Independent candidates. In column 11 of the above nomination papers, the petitioners have shown 'Football' as their first preference election symbol. PW4, the State Committee Secretary of the Revolutionary Marxist Party of India (RMPI) WPC No.26132 of 2024 17 2024:KER:71527 has submitted letters dated 22.11.2020 (produced and marked before the State Election Commission as Exhibits- A1, A2, A3 & A4) before the Returning Officer, requesting to allot to the Petitioners RMPI's election symbol 'Football' and in each of said letters, there is endorsement of the Returning Officer that considering the priority, the candidate has been allotted election symbol 'Football.' In all the aforesaid nomination papers, the Returning Officer has endorsed that the election symbol 'Football' has been allotted to the Petitioners on the basis of submission of a priority letter.
18. The legal sanctity of the priority letters submitted by the State Committee Secretary of the Revolutionary Marxist Party and the legal consequence of allotment of the election symbol 'Football' to the Petitioners on the basis of the said priority letters are the relevant questions to be decided in this writ petition which will decide the legality of the findings of the election commission. As questions of law as to the applicability of Symbols Order, 2017 and the explanation to Section 3 of the Act arise for consideration in this case, I am not inclined to accept the contention of the learned senior counsel Sri.K.Ramakumar that this Court need not entertain the writ petition much less consider the correctness of the order as no grounds are made out for the issuance of a writ of certiorari. An error in the decision or determination itself can be corrected by a writ of certiorari if there is a manifest error apparent on the face of the records or when the order is based on ignorance or disregard of the WPC No.26132 of 2024 18 2024:KER:71527 provisions of law. Further, it is not the correctness of the findings of fact that is being considered in this writ petition. Though the jurisdiction to issue a writ of certiorari is supervisory and not appellate, in the instant case on account of the importance of the legal question to be decided, I am inclined to consider the correctness of the order impugned in this writ petition.
19. "Rule 12 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 deals with the allotment of symbols and reads as follows:-
"12. Symbols:- (1) As soon as may be after the coming into force of these rules, the State Election Commission shall, by notification in the Gazette, publish a list of symbols and may elaborate or alter them in such manner and the Returning Officer shall then assign symbols of preference to the contesting candidates from such list:
Provided that the candidates belonging to political parties shall be assigned the same symbols assigned by the Election Commission of India: [Provided further that in the case of candidates belonging to political party to which Election Commission of India has not assigned symbol, such candidate shall be assigned symbols from the list of symbols published under sub-rule (1) in the order of preference noted by them.] [(1A) In the case where a political party recognized by or registered with the WPC No.26132 of 2024 19 2024:KER:71527 Election Commission of India is split into two or more political parties and each of such party raises claim for the same symbol assigned by the Election Commission of India or for which eligible for preference as per the second proviso to sub-rule ,(1), the State Election Commission shall not assign such symbol to the candidates belonging to those parties and shall assign one symbol each from the symbols notified under sub-rule(l) to the candidates belonging to each such party.
(B) In the case where symbol can be assigned to candidates belonging to a political party on preference as per the second proviso to sub-rule (1), the State Election Commission shall; as far as possible, assign the same symbol to candidates throughout the State belonging to that political party. (2) If more than one candidate has recorded preference for the same symbol, the Returning Officer shall, after giving notice to the candidate concerned, decide by lot to which candidate that symbol is to be assigned and such decision of the Returning Officer shall be final:
Provided that if it is not possible to assign none of the symbol specified by the candidate in the nomination paper in Form No. 2 the Returning Officer may assign to that candidate any symbol from among the symbols in the list. (3) In each case where a symbol has been assigned to a candidate, the Returning Officer shall forthwith inform that candidate about the symbol so WPC No.26132 of 2024 20 2024:KER:71527 assigned and supply with a specimen thereof.
(4) The State Election Commission may reconsider the action of the Returning Officer in assigning symbol to a candidate and if it is satisfied that the action of the Returning Officer is- wrong, another symbol may be assigned."
20. Thus, in exercise of the powers under Rule 12 of the Kerala Panchayat Raj (Conduct of Election ) Rules, 1995 and the Kerala Municipality (Conduct of Election) Rules, 1995 and the powers conferred by Articles 243K and Article 243ZA of the Constitution of India, the State Election Commission, Kerala has issued the Local Authorities Election Symbols (Reservation and Allotment) Order, 2017 for the reservation, allotment and assignment of symbols in the Local Self Government Institutions in the State of Kerala. Paragraph 2 of the Symbols Order, 2017 prescribed definitions and paragraph 2 (g) defines 'Recognized Political Party' as a Political Party recognized by the Election Commission of India as a National Party or as a State Party in a State or Union Territory. Paragraph 2(h) defines 'Registered Unrecognized Political Party' to mean and include every Political Party registered under Section 29A of the Representation of the People Act, 1951, but classified under paragraph 6 of the Election Symbols (Reservation and Allotment) Order, 1968 as unrecognized Political Party. Paragraph 3 of the Symbols Order 2017 provides for the classification of Symbols and the same reads as follows:-
WPC No.26132 of 2024 21 2024:KER:71527 '3.Classification of symbols.- (1) For the purpose of this order, symbols are either reserved, allotted or free (2) Save as otherwise provided in this Order, a reserved symbol is a symbol which is reserved by the Election Commission of India under the Election Symbols (Reservation and Allotments) Order, 1968 to a National party or a State party in the State of Kerala.
(3) Allotment symbols means a symbol allotted to the recognized political party of other States or Union Territories or a symbol allotted to the registered unrecognized political party having a member or members either in the Kerala Legislative Assembly or in any Local Self Government Institution in the State of Kerala.
(4) A free symbol is a symbol other than a reserved or allotted symbol'.
21. Paragraph 4 of the Symbols Order, 2017 provides for allotment of symbols by the Commission and reads as follows:-
'4. Allotment of symbols by the Commission.- (1) The candidates of a recognized national party or a recognized State party in the State of Kerala shall be assigned the same symbol to it by the Election Commission of India. (2) The candidates of recognized State parties of other States of Union Territories shall be allotted, as far as possible, the same symbols reserved to WPC No.26132 of 2024 22 2024:KER:71527 them by the Election Commission of India.
Provided that where the symbol reserved by the Election Commission of India for the recognized political parties of other States or Union Territories is not available in the list of free symbols published by the Commission, the [party concerned shall make available the sketch/drawing of its symbol along with the application to be submitted under paragraph 5 (3) The candidate of a registered unrecognized political party having a member of members in the Kerala Legislative Assembly or in any Local Self Government Institution in the State of Kerala shall be allotted, as far as possible, the symbol of its choice:
(4) The candidates of registered unrecognized political parties not coming under any of the above sub paragraphs shall be assigned the symbol in the order of preference made by them, subject to availability, from the list of free symbols and in such a case the said symbol shall, as far as possible, be assigned to their candidates throughout the state. (5) Any other candidate shall be given a symbol from the list of free symbols (6) Every independent candidate may give in his or her nomination paper choice of 3 symbols in the order of preference, from the list of free symbols published by the Commission WPC No.26132 of 2024 23 2024:KER:71527 (7) Where any free symbol has been chosen by only one candidate at such election, the Returning Officer shall allot that symbol to that candidate and to no one else (8) Where a free symbol has been chosen by two or more candidates in such election, then the Returning Officer shall decide, by lot, to which candidate that free symbol shall be allotted and then he shall allot that symbol to the candidate or whom the lot falls and to no one else'.
22. Paragraph 7 of the Symbols Order, 2017 provides for notification of list of symbols and the same reads as follows:
'7. Notification of list of symbols.- (1) The Commission shall, by one or more notifications publish list of,-
(a) The National parties and the symbols respectively reserved for them;
(b) The State parties in the State of Kerala and the symbols respectively reserved for them;
(c) Political parties coming under recognized State parties of other States or Union Territories to which symbols have been allotted by the Commission and the registered unrecognized political party having a member or members in the Kerala Legislative Assembly or having a member or members in any of the Local Self Government Institution in the State of Kerala , and WPC No.26132 of 2024 24 2024:KER:71527 the symbols respectively allotted to them.
(d) Free symbols for the independent candidates which include the symbols allotted to registered unrecognized political parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala.
(2) Every such list shall, as far as possible, be kept up to date'.
23. Further, Paragraph 8 of the Symbols Order 2017 specifies when a candidate shall be deemed to be 'set up by a political party' and the same reads as follows '8. When a candidate shall be deemed to be set up by a political party. For the purpose of this Order, a candidate shall be deemed to be set up by a political party, only if -
(i) The candidate has mentioned the name of the political party in the prescribed column in the nomination paper and has chosen the symbol, if any, reserved or allotted for that party in the nomination paper. Provided that if a political party recommends the symbol of the party to a candidate who has not mentioned in the name of the political party or its symbol in the nomination paper and has mentioned a symbol from the list of free symbols in the nomination paper, he is eligible to get the symbol of that WPC No.26132 of 2024 25 2024:KER:71527 party allotted to him;
(ii) A notice by the political party in writing to that effect, not later than 3.00 PM on the last date for withdrawn of nominations, is delivered to the returning officer of the constituency;
(iii) The said notice is signed by the person authorized by political party from time to time to recommend the symbol that political party; Provided that no facsimile signature, signature by means of rubber stamp, signature transmitted by electronic means etc of such authorized persons shall be accepted.
(iv) The State President, Secretary or Convener as the case may be, of the political party shall authorize a person to recommend the symbol of that political party and shall intimate his name and office to the State Election Commission, District Election Officer or the concerned Returning Officer.'
24. Here it would be relevant to note that prior to the 2020 General Election to Local Self Government Institutions in the State of Kerala, the State Election Commission had in pursuance of paragraph 7 of the Symbols Order, 2017, issued an up-to-date list of election symbols as per notification No.278/2020/SEC dated 06.11.2020 and published in Kerala Gazette Extraordinary No.2690 dated 6.11.2020.
WPC No.26132 of 2024 26 2024:KER:71527
25. Thus, in the said notification, the free symbols for independent candidates which include the symbols allotted to registered unrecognized political parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala were provided in Table-IV. Accordingly, the election symbol 'Football' has been included in Table-IV of said notification at serial number 33 and it is mentioned therein that the said symbol has been allotted to Revolutionary Marxist Party of India (RMPI) on priority basis.
26. Therefore, in view of paragraph 3(4), 4(4) & 7(d) of the Symbols Order, 2017, as far as the election symbol 'football' is concerned, as on the date of 2020 General Election to Local Self Government Institutions in the State of Kerala, the said symbol though included as a free symbol, stood allotted to Revolutionary Marxist Party of India (RMPI) on priority basis; meaning thereby that if RMPI (which was at that time a registered unrecognized political parties having no member or members in the Kerala Legislative Assembly or in any of the Local Self Government Institutions in the State of Kerala) recommends said symbol to a candidate in the manner prescribed in paragraph 8(ii) to (iv), the Returning Officer would be bound to allot said symbol to the candidate on priority basis.
27. Further, on such allotment of the election symbol 'Football' to the RMPI candidate, the legal consequence as envisaged in Proviso to Paragraph 8(i) of the Symbols Order, 2017 would also set in and the respective candidate who WPC No.26132 of 2024 27 2024:KER:71527 has been allotted the election symbol 'Football' solely on the basis of priority letter issued by RMPI, would be deemed to be set up by said Political Party.
28. Therefore, in the instant case, even though in the nomination papers, the Petitioners have mentioned that they are independent candidates and though they have shown 'Football' (which is included as a 'free symbol' in Table IV of notification No.278/2020/SCE dated 6.11.2020) as their first preference election symbol, still, since it is admitted fact that at time of scrutiny of nominations, the Returning Officer has allotted the election symbol 'Football' to the Petitioners solely on the basis of priority letters submitted by RMPI, the legal effect of deeming provisions of Proviso to Paragraph 8(i) of the Symbols Order, 2017 is applicable in case of the Petitioners and accordingly, the Petitioners shall be deemed to set up by RMPI.
29. Further, the Explanation to Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 explicitly provides that for the purpose of Section 3 (Disqualification on ground of Defection) an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was [set up or given support] as a candidate for the election.
30. Hence, in the 2020 General Election to Local Self Government Institutions, by virtue of Proviso to Paragraph 8(i) of the Local Authorities WPC No.26132 of 2024 28 2024:KER:71527 Election Symbols (Reservation and Allotment) Order, 2017, since the Petitioners are deemed to be set up as candidates of RMPI from Ward Nos.1, 14, 10 & 3 respectively of East Elari Grama Panchayat, the Petitioners are also deemed to be members belonging to RMPI in view of Explanation to Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.
31. In this context, it would be relevant to note that allotment of election symbols is done by the Returning Officer at the time of scrutiny of nominations and such scrutiny is done after the last date of making nominations. It is hence that when the list of nominations is published by the Returning Officers in FORM No.3 as provided in Rule 9 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995, there is no provision in FORM No.3 for entering the election symbol of the candidates. However, after scrutiny of nominations, while publishing the list of contesting candidates by the Returning Officer in FORM No.6 as provided in Rule 13 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995, there is a provision in FORM No.6 for entering the election symbols allotted to the contesting candidates.
32. Therefore, the fact that at the time of submitting nomination papers, the Petitioners have declared in their nomination papers that they are not associated with any Political Party and that they are Independent candidates does not have any relevance since, admittedly, at the time of scrutiny of nominations, the Returning Officer has allotted election symbol 'Football' to the WPC No.26132 of 2024 29 2024:KER:71527 Petitioners solely on the basis of priority letters submitted by RMPI. Given the above, the contention of the learned senior counsel for the writ petitioners that they had contested the election as independent candidates and the same is seen from the declaration stated in the nomination papers, cannot be accepted. In view of the findings rendered above, the writ petitioners case must be covered by the explanation to Section 3 of the Act, and the petitioners must be held deemed to be set up by the RMPI. The Commission has come to the correct conclusion relying on the appropriate provisions. Under such circumstances, I do not find any illegality warranting interference of the order of the Commission.
Accordingly, the writ petition fails and is dismissed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
dlk/3.9./4.9/10.9./23.9/25.9
WPC No.26132 of 2024 30 2024:KER:71527
APPENDIX OF WP(C) 26132/2024
PETITIONERS EXHIBITS
EXHIBIT -P1 TRUE COPY OF THE NOMINATION SUBMITTED BY THE
1ST PETITIONER DATED 25.08.2022
EXHIBIT -P1(A) TRUE COPY OF THE NOMINATION SUBMITTED BY THE
2ND PETITIONER DATED 25.08.2022
EXHIBIT-P1(B) TRUE COPY OF THE NOMINATION SUBMITTED BY THE
3RD PETITIONER DATED 25.08.2022
EXHIBIT-P1(C) TRUE COPY OF THE NOMINATION SUBMITTED BY THE
4TH PETITIONER DATED 25.08.2022
EXHIBIT-P2 TRUE COPY OF THE RELEVANT PORTION OF THE HAND
BOOK OF ELECTION SYMBOLS ISSUED BY STATE
ELECTION COMMISSION, 2020
EXHIBIT-P3 TRUE COPY OF THE LETTER DATED 22.11.2020
ISSUED BY THE SECRETARY OF THE RMPI PARTY IN
FAVOR OF THE 1ST PETITIONER
EXHIBIT-P4 TRUE COPY OF THE CERTIFICATE UNDER FORM 25A
DATED 16.12.2020 ISSUE BY THE RETURNING
OFFICER TO THE 1ST PETITIONER
EXHIBIT -P4(A) TRUE COPY OF THE CERTIFICATE UNDER FORM 25A
DATED 16.12.2020 ISSUE BY THE RETURNING
OFFICER TO THE 2ND PETITIONER
EXHIBIT -P4(B) TRUE COPY OF THE CERTIFICATE UNDER FORM 25A
DATED 16.12.2020 ISSUE BY THE RETURNING
OFFICER TO THE 4TH PETITIONER
EXHIBIT -P4(C) TRUE COPY OF THE DETAILS OF ELECTED MEMBERS IN
THE EAST ELERI GRAMA PANCHAYAT OBTAINED FROM
THE OFFICIAL LSGD WEBSITE
EXHIBIT-P5 TRUE COPY OF THE RELEVANT PORTION OF THE PARTY
RELATION REGISTER
WPC No.26132 of 2024 31 2024:KER:71527
EXHIBIT -P6 TRUE COPY OF THE MINUTES OF THE MEETING DATED
30.12.2020 OF THE EAST ELERI GRAMA PANCHAYAT
EXHIBIT -P7 TRUE COPY OF THE OP NO.6 OF 2021 FILED BY THE
2ND RESPONDENT AGAINST THE 1ST PETITIONER
EXHIBIT-P7(A) TRUE COPY OF THE OP NO.7 OF 2021 FILED BY THE
2ND RESPONDENT AGAINST THE 2ND PETITIONER
EXHIBIT -P7(B) TRUE COPY OF THE OP NO.8 OF 2021 FILED BY THE
2ND RESPONDENT AGAINST THE 3RD PETITIONER
EXHIBIT-P7(C) TRUE COPY OF THE OP NO.9 OF 2021 FILED BY THE
2ND RESPONDENT AGAINST THE 4TH PETITIONER
EXHIBIT-P8 TRUE COPY OF THE WHIP ISSUED BY THE SECRETARY
OF THE RMPI PARTY DATED 29.12.2020 TO THE 1ST
PETITIONER
EXHIBIT -P8(A) TRUE COPY OF THE WHIP ISSUED BY THE SECRETARY
OF THE RMPI PARTY DATED 29.12.2020 TO THE 2ND
PETITIONER
EXHIBIT -P8(B) TRUE COPY OF THE WHIP ISSUED BY THE SECRETARY
OF THE RMPI PARTY DATED 29.12.2020 TO THE 3RD
PETITIONER
EXHIBIT -P8(C) TRUE COPY OF THE WHIP ISSUED BY THE SECRETARY
OF THE RMPI PARTY DATED 29.12.2020 TO THE 4TH
PETITIONER
EXHIBIT -P9 TRUE COPY OF THE WRITTEN SUBMISSION FILED BY
THE 1ST PETITIONER IN OP NO.6 OF 2020
EXHIBIT -P9(A) TRUE COPY OF THE WRITTEN SUBMISSION FILED BY
THE 1ST PETITIONER IN OP NO.7 OF 2020
EXHIBIT-P9(B) TRUE COPY OF THE WRITTEN SUBMISSION FILED BY
THE 1ST PETITIONER IN OP NO.8 OF 2020
EXHIBIT -P9(C) TRUE COPY OF THE WRITTEN SUBMISSION FILED BY
THE 1ST PETITIONER IN OP NO.9 OF 2020
EXHIBIT-P10 TRUE COPY OF THE COMMON FINAL ORDER DATED
2.7.2024 PASSED BY THE 1ST RESPONDENT ELECTION
COMMISSION
WPC No.26132 of 2024 32 2024:KER:71527
RESPONDENTS EXHIBITS
EXHIBIT R2(A) THE TRUE PHOTOCOPY OF LETTER DATED 22.11.2020
RECOMMENDING THE 2ND PETITIONER
EXHIBIT R2(B) THE TRUE PHOTOCOPY OF LETTER DATED 22.11.2020
RECOMMENDING THE 3RD PETITIONER
EXHIBIT R2(C) THE TRUE PHOTOCOPY OF THE SAID LETTER DATED
29.12.2020 IN RESPECT OF THE 1ST PETITIONER
EXHIBIT R2(D) THE TRUE PHOTOCOPY OF THE LETTER DATED
29.12.2020 IN RESPECT OF THE 2ND PETITIONER
EXHIBIT R2(E) THE TRUE PHOTOCOPY OF THE LETTER DATED
29.12.2020 IN RESPECT OF THE 3RD PETITIONER
EXHIBIT R2(F) THE TRUE PHOTOCOPY OF THE LETTER DATED
29.12.2020 IN RESPECT OF THE 4TH PETITIONER