Ancy Thomas v. Raji Chandran and The State Election Commission, WP(C) No. 28705 of 2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946** **WP(C) NO. 28705 OF 2023** ## **PETITIONER:** **ANCY THOMAS, AGED 49 YEARS W/O.THOMAS MATHEW, MEMBER, DIVISION NO.13, IDUKKI BLOCK PANCHAYAT, IDUKKI DISTRICT, RESIDING AT THAYYI HOUSE, MANIPPARA P.O., KARIMPAN, IDUKKI,, PIN - 689602** **BY ADVS. SACHIN RAMESH T.S.ATHIRA AKASH JOSHI** ## **RESPONDENTS:** **1 RAJI CHANDRAN, AGED 38 YEARS, W/O. SAJEEV P.K., MEMBER, DIVISION NO.2 IDUKKI BLOCK PANCHAYAT, IDUKKI DISTRICT, HAVING RESIDENCE AT PARACKAL HOUSE, THATTEKKANNI P.O., IDUKKI DISTRICT, PIN - 685607 2 THE STATE ELECTION COMMISSION, VIKAS BHAVAN , THIRUVANANTHAPURAM, PIN - 695033 BY ADVS. LIJI.J.VADAKEDOM SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA JOICE GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **05.07.2024, THE COURT ON 18.07.2024 DELIVERED THE FOLLOWING:** -2- **WP(C)No.28705 of 2023** ## **MOHAMMED NIAS C.P., J.** ## **-----------------------------------------------** **WP (C)No.28705 of 2023** ## **---------------------------------------------** **Dated this the 18[th] day of July, 2024** ## **JUDGMENT** The petitioner and the first respondent were elected members of the Idukki Block Panchayat representing Division No.13 and Division No.2 respectively in the election held for the Local Self Government Institutions in December 2020. Idukki Block Panchayat consists of a total of 13 divisions, of which two members belonged to Kerala Congress (M) P.J. Joseph Group and five to the Indian National Congress (INC), giving the UDF coalition majority of seven members. After the election, at the instance of the District leaders of UDF, arrangements were made for ruling the Idukki Block Panchayat. On 21.12.2020 the first -3- ## **WP(C)No.28705 of 2023** respondent had given a sworn declaration before the Secretary, Idukki Block Panchayat, showing her association with the political party as Indian National Congress. On 30.12.2020 the first respondent herein was elected as the President. As per an understanding arrived on 10.1.2021 among the UDF coalition, the President should vacate the position after one year and accordingly, he resigned. On a decision of the District Congress Committee taken on 5.2.2022, the President issued a whip to cast their votes in favour of the petitioner. Idukki District Congress Committee also convened a meeting of the members and gave direction in writing as a whip. 2. On 7.2.2022, a meeting was convened for the election of the new President of the Block Panchayat in which the first respondent herein stood as a candidate with the support of LDF members and he was elected as the new President of the Block Panchayat. The petitioner challenged the same by filing OP No.5 of 2022 before the second respondent, State Election Commission to declare that the first respondent has incurred disqualification -4- ## **WP(C)No.28705 of 2023** and for consequential reliefs. By Ext.P11 order dated 4.7.2023 the original petition, OP 5 of 2022 filed by the petitioner was dismissed. The Commission found no proof to show any service of the whip. However, it found that the first respondent was disloyal attracting disqualification. However, since no material was produced to establish that the first respondent was aware of the decision of the party nominating the petitioner as a candidate for the post of President or placed any decision of the political party taken in the meeting of all the members, dismissed the original petition. 3. Heard Sri. Sachin Ramesh learned counsel appearing for the petitioner, Sri. Deepulal Mohan learned Standing Counsel for the Election Commission and Sri. Liji J.Vadakedom the learned counsel for the first respondent, and perused the records. 4. Learned counsel for the petitioner submits that the first respondent had acted disloyal to the party which fielded him as a candidate knowing fully well that the petitioner was the -5- ## **WP(C)No.28705 of 2023** candidate proposed by the UDF coalition. The contention that the first respondent was not aware of the petitioner being chosen as the candidate for Presidentship, is wrong and that the first respondent had voluntarily given up her membership, and joined another political party and thereby committed defection and incurred disqualification. The learned counsel also argues that despite the Commission finding that the first respondent was disloyal to the party that fielded her, holding that there was no adherence to the procedure prescribed under Rule 4 of the Kerala Local Authorities (Prohibition of Defection) Rules, 2000, with respect to service of whip, had wrongly rejected the petition. Learned counsel also submits that the subsequent conduct of the first respondent who had supported a No Confidence Motion against the Vice President, evident from Ext.P12 and voting in favour of the candidate fielded by the LDF against the official candidate of the UDF itself clearly showed that the first respondent was bent up on usurping the rule of party under whose banner she was elected. Learned counsel also -6- ## **WP(C)No.28705 of 2023** places reliance on the judgments in **Tissy M.K. @ Tissy Binu v. State Election Commission, Kerala** [2022 KHC 261] and **Sujith Sreerengum v. Sunil Sradheyam** [2023 (3) KHC 482] 5. Learned counsel appearing for the first respondent Sri. Liji J.Vadakedom submitted that it was the specific case of the first respondent that though she had resigned from the post of Block President, there was no decision taken to change the existing President or that no information was given to her that she was not permitted to contest as aforesaid or that the petitioner was fielded as the candidate as no contra decision was taken by the party. It is also stated that on 30.1.2022, the first respondent tested COVID-19 positive and therefore was under quarantine and though several persons including the DCC President contacted the first respondent over the telephone, there was no intimation given that the party had decided to change the first respondent from the post of the President. The claim of the petitioner that she was the official candidate of the -7- ## **WP(C)No.28705 of 2023** UDF is also denied by the first respondent contending that no such decision was taken and the first respondent was the candidate permitted by the authority to contest the election held on 7.2.2022 to the post of President. Learned counsel appearing for the first respondent places reliance on the judgments in **Joseph K.M. v. Babychan Mulangasseri and others** [2015 (1) KHC 111] **Sandeep M.T. and others v. Kerala State Election Commission and others** [2015 (5) KHC 133] and **Anita Sharma and others v. Newe India Assurance Company Ltd. and another** (2020 KHC 6690). 6. Learned Standing Counsel appearing for the State Election Commission submits that the State Election Commission held that the act of the first respondent was disloyal to the party that fielded her and it was only on the ground that there was no proof of service of the whip that the application came to be rejected. He had also placed the following judgments of this Court which stated the principles of law on the issue on hand. -8- ## **WP(C)No.28705 of 2023** **Sunil Sradheyam v.Sujith Sreerengum** [2024 KHC Online 1058], **Smt.Tessy v. Mr.Abdul Kareem and others (** WA No.60 of 2024 dated 15.1.2024) and the judgment in **Mr.Abdul Kareem** **v. The Kerala State Election Commission and others** in (WP(C)No.14084/2023 dated 3.1.2024) **.** 7. After hearing the learned counsel on either side, a few undisputed facts are to be noticed. It is not in dispute that the first respondent had given a declaration showing her allegiance through a declaration in terms of Rule 4(2), meaning that she is aware of the party to which she belongs, and the coalition. It is also to be noticed that a decision was taken, whereby, the President was to continue for a year and for the next two years the petitioner was to continue as the President. It is based on the said decision that the first respondent had resigned, absent such a decision there was no requirement at all for the first respondent to resign. It is also not disputed that the petitioner, was a member of the Indian National Congress just as the first -9- **WP(C)No.28705 of 2023** respondent and it was the petitioner who was fielded as a candidate by the UDF. Though this is disputed by the first respondent, no materials whatsoever are shown by the first respondent to show that she was the candidate who was fielded by the UDF/INC. Under such circumstances, the first respondent must be taken to be a candidate who contested and won with the help of the opposite party, which act itself would incur disqualification within the meaning of the Act and Rules. It is to be noted that the first respondent stood as a candidate with the support of LDF members against the official candidate of UDF as his name was proposed by one Sri. Sibichan Thomas and seconded by Sri.Dittage Joseph, both of whom belonged to the LDF faction. 8. Going by the principles of law stated in **Tissy M.K. @ Tissy Binu v. State Election Commission, Kerala** [2022 KHC 461] standing in an election as a candidate for the post of President, when admittedly there is no such mandate from the -10- ## **WP(C)No.28705 of 2023** political party and then defeating the candidate, whom the competent authority of the party proposed and recognised as official candidate of the party, and winning the election by securing the vote of the opposition can only be termed as an act of disloyal. Needless to say, an action of disloyalty of such nature would amount to voluntarily giving up membership of that particular political party. It is also to be noted that this Court in the judgment in **Sujith Sreerengum v. Sunil Sradheyam** [2023 (3) KHC 482] also held that when a member has stood for an election to contest against a candidate of his own coalition, it can be deemed that the member has voluntarily given up his membership of that political party. The division judgment cited by the learned Standing Counsel for the Election Commission reported in **Sunil Sradheyam v. Sujith Sreerengum** [2024 KHC Online 1058] upheld the decision of the learned single Judge in **Sujith Sreerengum** (supra). -11- ## **WP(C)No.28705 of 2023** 9. Learned counsel for the first respondent argued that there were no pleadings in the petition filed by the writ petitioner about the first respondent being permitted to contest and in the absence of pleadings the case of the petitioner cannot be accepted. As held by this Court in the judgment in WP©No.14084/2023 dated 3.1.2024, an independent member can incur disqualification if he either withdraws from the coalition or joins any other political party or any coalition or acts in violation of the whip. Given the facts and evidence adduced in this case along with the circumstances, it is clear that a member of the group of elected members of a political party took a different stand from that of the political party as such and has acted against the policies of the political party in which he was a member. This conduct can only be termed as disloyalty as rightly found by the Commission. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership, and more so when a member stands for election to contest against a candidate of his -12- ## **WP(C)No.28705 of 2023** own party or coalition, it should be deemed that the member has voluntarily given up his membership of that particular party in whose name he has given the declaration. The conduct of the first respondent is more than enough to incur disqualification within the meaning of Section 3(1)(a) &(b) of the Act. 10. The order of the second respondent is illegal for the reasons stated above. Ext P 11 order is accordingly set aside. The petition O P No. 5 of 2022 filed by the petitioner is allowed and the first respondent herein is declared as disqualified from being a member of the Idukki Block Panchayat. As a consequence of the above, the first respondent shall be disqualified from contesting as a candidate in an election to any local authority for six years from today. The Writ petition is allowed as above. ## **Sd/- MOHAMMED NIAS C.P.** ## **JUDGE** dlk/14.7.2024 -13- ## **WP(C)No.28705 of 2023** ## **APPENDIX OF WP(C) 28705/2023** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 THE COPY OF THE NOMINATION FORM DATED 19/11/2020 SUBMITTED BY THE 1ST RESPONDENT, OBTAINED UNDER RIGHT TO INFORMATION ACT** **EXHIBIT P2 COPY OF THE DECLARATION DATED 21/12/2020 SUBMITTED BY THE 1ST RESPONDENT** - **EXHIBIT P3 COPY OF THE WHIP DATED 05/02/22 ISSUED TO THE PETITIONER** - **EXHIBIT P4 COPY OF THE MINUTES OF THE MEETING DATED 07/02/2022 CONVENED FOR CONDUCTING THE ELECTION** - **EXHIBIT P5 A TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION NO. 5 OF 2022 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P6 A TRUE COPY OF THE OBJECTION DATED 13.7.2022 IN O.P. NO. 5 OF 2022 FILED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT DATED 1.11.2022 AND DEPOSITION IN OP NO. 5 OF 2022 OF PETITIONER FILED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8 TRUE COPY OF DEPOSITION OF PW2 DATED 17.1.2023** **EXHIBIT P9 TRUE COPY OF DEPOSITION OF PW 3 DATED 17.1.2023** **EXHIBIT P10 COPY OF AFFIDAVIT DATED 23.3.2023 ALONG WITH DEPOSITION OF RW1 IN OP NO.** -14- ## **WP(C)No.28705 of 2023** **5 OF 2022 FILED BEFORE THE 2ND RESPONDENT** **EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 04/07/2023 IN O.P 5/2022 OF THE 2ND RESPONDENT** **EXHIBIT P12 COPY OF PROCEEDINGS NO. IDP/B2-3094/22 OF THE MEETING HELD ON 21/12/2022** **EXHIBIT P13 COPY OF THE MINUTES OF THE MEETING DATED 04/01/2023 OF THE IDUKKI BLOCK PANCHAYATH**