C. Vijayakumar v. Kerala State Election Commission, Neyyattinkara Municipality and S.S. Jayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932** **WP(C).No. 1009 of 2011(A)** **--------------------------------------** ## **PETITIONER(S):** **------------------------** **C.VIJAYAKUMAR, COUNCILLOR, WARD NO.26 (FORMERLY COUNCILLOR, WARD NO.30), NEYYATTINKARA MUNICIPALITY, NEYYATTINKARA, THIRUVANANTHAPURAM** **BY ADVS. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA SMT.M.G.AISHWARYA** ## **RESPONDENT(S):** **--------------------------** **1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM** **2. NEYYATTINKARA MUNICIPALITY, NEYYATTINKARA, THIRUVANANTHAPURAM REP. BY ITS SECRETARY - 695 121.** **3. S.S.JAYAKUMAR, GEETHA NIVAS, ARALUMOODU P.O., ATHIYANNUR VILLAGE, THIRUVANANTHAPURAM 695138 FORMER COUNCILLOR WARD NO.3 (PRESENT CHAIRMAN) NEYYATTINKARA MUNICIPALITY, THIRUVANANTHAPURAM** **R1 BY ADV.SRI. MURALI PURUSHOTHAMAN R2 & R3 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R3 BY ADV. SRI.K.HARILAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.1009/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**COPY OF THE ORDER DATED IN O.P.NO.10/2009 DATED 21/12/2010 OF THE 1ST**| |---|---| ||**RESPONDENT.**| |**P2**|**COPY OF THE COMMUNICATION NO.C/17563/2010 DATED 28/12/2010 OF THE 2ND**| ||**RESPONDENT.**| |**P3**|**COPY OF THE COMMUNICATION NO.C/17540/2010 DATED 28/12/2010 OF THE 2ND**| ||**RESPONDENT.**| |**P4**|**COPY OF THE NOTIFICATION DATED 28/1/2011 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**RESPONDENT'S EXHIBITS:**<br>**NIL**|| ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **C.T. RAVIKUMAR, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No.1009 OF 2011** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of February, 2011** ## **J U D G M E N T** The petitioner who stands disqualified for voluntarily giving up the membership of Indian National Congress under the Kerala Local Authorities (Prohibition of Defection)Act, (for short 'the Act') filed this writ petition seeking declarations that he has not acted against the interest of the Congress Parliamentary Party and that he has not voluntarily given up the membership of the Congress Party. The petitioner also seeks issuance of a writ of certiorari to quash Ext.P1 and also for a declaration that he is entitled to continue as a councilor in the second respondent Municipality and consequently, for issuance of writ of mandamus commanding the respondents 1 and 2 to allow the petitioner to continue as a member of the council of the second respondent Municipality. 2. In the election held in September, 2005 the petitioners had contested under the banner of the Indian National Congress. He was elected from Ward No. 30 of WPC.1009/2011 : 2 : Neyyattinkara Municipality. In the said election the 3[rd] respondent who is presently the Chairman of the second respondent Municipality, was elected from Ward No.3 of the Neyyattinkara Municipality. In the Municipal Council, the Left Democratic Front (for short 'LDF') was having 21 members and the United Democratic Front(For short 'UDF') was having 19 members and there was another member belonging to Bharathiya Janatha Party(for short 'BJP'). Thereupon, there was a move from the elected candidates under the banner of Indian National Congress themselves for a 'No Confidence Motion' to unseat one Priyamvada, the then Chairperson who too, won the election under the banner of Indian National Congress. The allegation was that contrary to the understanding at the party level Priyamvada refused to demit the office after 2½ years of tenure as Chairperson of the Municipality. On 21.1.2009 six members belonging to the Indian National Congress including the petitioner herein, gave notice of 'No Confidence Motion' for unseating Smt. Priyamvada. Thereafter, the 'No Confidence Motion' was moved on 2.2.2009. The petitioner, admittedly, voted in WPC.1009/2011 : 3 : favour of the 'No Confidence Motion' that ultimately, resulted in unseating of the aforesaid Priyamvada as Chairperson. Subsequently, the election of Chairperson was held on 19.2.2009 and Vijayakumari was proposed by one Appu Pillai belonging to LDF and Smt.Priyamvada contested the election as a candidate of Indian National Congress. The said Smt. Vijayakumari was elected as a Chairperson and, in fact, she had elected based on the votes cast by LDF members and 6 members of Indian National Congress including the petitioner herein. In the said circumstances, the 3[rd] respondent, then a councilor belonging to the member of the congress party, filed OP No.10/2009 under section 4 of Local Authorities Prohibition of Defection Act, 1999 (For short 'the Act'), alleging that the petitioner herein had committed defection and hence liable to be disqualified to continue as councilor of the Neyyattinkara Municipality. There is a further prayer to declare that the petitioner herein (respondent therein) is disqualified for a period of six years to contest in any election to Local authorities. In OP No. 10/09 filed under section 4 of the Act, the 3[rd] respondent herein WPC.1009/2011 : 4 : sought to disqualify the petitioner under the Act for defying the whip issued by the Congress Parliamentary party and also for voluntarily giving up the membership of the Indian National Congress Party. 3. Ext.P1 is the common order passed on 21.10.2010 in OP Nos.9/2009, 10/2009, 11/2009, 12/2009 and 13/2009. Obviously, as per Ext.P1 it was not found to have defied the whip issued by the Congress Parliamentary Party. However, it was found and held disqualified on the ground of voluntarily giving up the membership of the Indian National Congress party. This writ petition has been filed challenging that part of Ext.P1 order whereby the petitioner was declared disqualified for voluntary giving up the membership of the Indian National Congress. The 3[rd] respondent herein was the petitioner therein as examined as PW 1. One S.K. Jayachandaran, who was described as parliamentary whip of the Congress party was examined as PW2 and one S.Chandaran who was described as the whip of the UDF Parliamentary Party was examined as PW 3. The petitioner herein who was the respondent in O.P No.10/09 was examined WPC.1009/2011 : 5 : as RW1. RW2 and RW3 are respectively, the respondents in OP No.13/2009 and 11/2009. On the side of the petitioner therein Ext.P11 and P12 are marked and on the side of the respondent therein/the petitioner herein, Exts.X1 to X3 were marked. Based on the rival contentions the issues whether the petitions are maintainable and whether the respondent in OP Nos.3/2009, 10/2009 and 11/2009 are liable to be disqualified for defying the whip issued by the Congress Parliamentary party and for voluntarily giving up of membership of the party were framed for consideration. As noticed hereinbefore, the first ground on which the petitioner was sought to be declared as disqualified viz., defying the whip issued by Congress Parliamentary Party was virtually found that in favour of the petitioner herein and therefore, I do not propose to consider the said aspect in this writ petition. Evidently, the petitioner was declared as disqualified for defection on the ground of voluntarily giving up the membership of the Indian National Congress. 4. In the election petition No. 10/2009 it was pleaded that the petitioner herein was elected as a member of WPC.1009/2011 : 6 : Neyyattinkara Municipality as a candidate of the Indian National Congress Party which is the major party in the UDF coalition. It was further pleaded that the petitioner along with 5 other members of the Indian National Congress and the members of the LDF voted in favour on the 'No Confidence Motion' moved by Smt.Vijayakumari, the respondent in OP No.8/2009 which was disposed of by a separate order by the Election Commission, and by casting vote in favour of No Confidence Motion, the petitioner had voluntarily giving up membership of the Indian National Congress Party and thereby incurred disqualification in terms of the provisions under section 3 of the Act. The petitioner had filed objections in OP No. 10/2009 refuting the allegations raised by the 3[rd] respondent in OP No.10/2009. A scanning of Ext.P1 order would reveal that the contention of the 3[rd] respondent was upheld, rather, the stand of the petitioner herein was not upheld on certain specific grounds. Evidently, before the Commission, the arguments advances on behalf of the petitioner is that there was an understanding in the year 2005 to share the post of Chairperson between Smt. Priyamvada WPC.1009/2011 : 7 : and Smt.Vijayakumari and, in other words, each one would have to hold the office only for a period of 2½ years. However, the petitioner did not produce any evidence to support or sustain this contention and also did not produce copy of any such agreement. Further, it is found that though the respondent had contended that the DCC, directed Smt.Priyamvada to step down to make seat for Vijayakumari, the petitioner herein and other respondents in the other connected OP did not produce any document to support and prove the said contention. That apart, they had not examined any responsible office-bearer of the congress party to lend support and lead evidence for that behalf. Further, it is found that the petitioners and other persons had failed to prove that they had permission from the District Congress Committee to move the 'No Confidence Motion' against Smt. Priyamvada and they had failed to adduce any oral or documentary evidence to prove the said vital aspect. Ext.P1 would further show that the voting pattern on 19.02.2009 was virtually relied on by the Commission to arrive at a conclusion that the petitioner herein was hand in glove with LDF to unseat the WPC.1009/2011 : 8 : congress/UDF nominee. In fact, a scanning of Ext.P1 would reveal that the said incident was relied on for the purpose of corroborating the pattern of voting at the No-Confidence Motion held on 02.02.2009. The said Vijayakumari who moved the No Confidence Motion secured 25 votes and Smt.Priyamvada obtained only 13 votes. Indisputably, along with all the members belonging to the LDF, the petitioner and the other members of Indian National Congress who moved/supported the No-Confidence Motion voted in favour of the No Confidence Motion and unseated the Congress nominee Priyamvada from the post of Chairperson. The petitioner as RW1 in his cross examination admitted, as hereunder:- **''** രണര വര�� കഴ�ഞപ��ള��ന� ഒഴ�യ�നത�ന� പ��യ�വദയ��� ഡ�.സ�.സ�. പരഖ�മ!ല� ന�രപ#ശ� നലക�യ�ര�പന� എന� എന��� അറ�യ�ല. **''** The failure on the part of the petitioner to produce any document despite his deposition to the effect that the DCC had given written direction to Sri. Sadananda Kumar to move WPC.1009/2011 : 9 : 'No Confidence Motion' against Smt.Priyamvada was also relied on by the Commission to form its conclusion in Ext.P1. It was further found that all the 19 members of the LDF and the petitioner and other dissenting faction of the UDF voted in favour of the 'No Confidence Motion' and all the remaining members in the Congress and UDF opposed the 'No Confidence Motion'. The deposition of RW 3 was also relied on by the commission. RW3, one Smt. Ambili, deposed as hereunder:- ''അവ�ശ*�സപ�പമയ� അവതര�����ന ഡ�സ�സ� എന��� പരഖ�മ!ല� ന�രപ#ശ� തന�ട�ല'' In view of the indisputable fact that the petitioner herein and other 5 members of the dissenting faction, along with the members of LDF unseated the congress/UDF nominee. The commission arrived at the conclusion that respondents in the Original Petitions including the petitioner herein who was the respondent in OP 10/09, acted against the interest of the party viz., Indian National Congress and brought down its image by joining with the rival LDF in the matter of unseating the Chairperson who was the nominee of the Congress Party and WPC.1009/2011 : 10 : the UDF. It is based on the said facts and circumstances that the commission arrived at the conclusion that the petitioner herein had voluntarily given up his membership from the Congress Party and thereby incurred disqualification under section 3 of the Act and accordingly declared him as disqualified under section 4(3) of the Act. 5. The short question that posed for consideration in this writ petition is whether the findings by the election commission that the petitioner had voluntarily given up his membership from the political party viz., the Indian National Congress is legal and sustainable. As already noticed, the facts are not at all in dispute. In other words, admittedly, the petitioner was elected as a member of the Neyyattinkara Municipality in September, 2005 under the banner of Indian National Congress. Smt. Priyamvada, a returned candidate under the banner of the Indian National Congress Party in the said election to the Neyyattinkara Municipal Council was elected as a Chairperson to the election held on September 2005. On 21.1.2009 the petitioner signed in the No Confidence Motion along with 5 other members of the party WPC.1009/2011 : 11 : who, like the petitioner got elected as members of Neyyattinkara Municipality under the banner of Indian National Congress. The said No Confidence Motion was moved on 2.2.09. The petitioner along with other 5 dissenting members of the Congress Party voted in favour of the No Confidence Motion along with 19 members belonging to the LDF and that admittedly, resulted in unseating of the Chairperson belonged to Indian National Congress Party. As already noticed hereinbefore, the fact that the petitioner was a signatory to the No Confidence Motion is not at all disputed by the petitioner. The contention of the petitioner is that casting vote in favour of the No Confidence Motion to unseat the chairperson would not and could not entail disqualification under section 3 of the Act. As already noticed hereinbefore, though the petitioner had categorically contended before the Commission as also before this Court that the understanding was that Smt.Priyamvada would demit the office of chairperson on completion of 2½ years no evidence was adduced to prove such contention. It was in the said circumstances that the said contention was not accepted. So WPC.1009/2011 : 12 : also, there was nothing on record to show that the petitioner and others were granted permission by the District Congress Committee to move the No Confidence Motion against Priyamvada who was then holding the post of chairperson. With respect to the question whether signing the notice of No Confidence Motion per se would constitute an act of disqualification on the ground of defection in the absence of any such provision under the Act and in the light of the decision reported in **Chinnamma Varghese v. State Election Commission(2010(3) KLT 426)** , I am of the considered view that the action in signing notice of No Confidence Motion would not, by itself, amount to voluntarily giving up of membership from a political party. But, the question is whether the subsequent action on the part of the concerned member in casting his vote in favour of the No Confidence Motion would entail disqualification in terms of the provisions under section 3 of the Act. While considering this issue another aspect also assumes relevance. As already noticed though the petitioner has subsequently contended that the Indian National Congress party granted permission to WPC.1009/2011 : 13 : move No Confidence Motion, no evidence was adduced to prove the same before the commission. The findings of the Commission that 19 members of LDF and the members of dissenting faction viz., the petitioner and other 5 members have voted in favour of the No Confidence Motion is not in dispute in this writ petition. In fact, it is an indisputable fact. Now, the question will precipitate into one whether the overt act of voting in favour of a No Confidence Motion for the purpose of unseating the member belonging to one's own party could be taken as voluntarily giving up of membership of that party. The petitioner is attempting to justify his action in voting in favour of the No Confidence Motion, of course contending that had he been found done something against the interest of the party by voting in favour of the Noconfidence Motion, the party to which he belongs would have taken appropriate action against him. Moreover, his contention is that there in such circumstances, it should have been taken that, in the absence of any material to show that the petitioner and other members of Indian National Congress and the UDF were given a whip, they were given permission WPC.1009/2011 : 14 : for conscious vote. To content that it would not entail disqualification, the learned counsel relied on a decision reported in **Naseera Beevi v. State Election Commission** ( **2004(1)KLT 1108)** . The learned counsel appearing for the respondent readily pointed out that the said decision was overruled by a Division Bench of this Court reported in **Varghese v. Kerala State Election Commission(2009(3) KLT 1)** . The learned Standing Counsel appearing for the Commission further submitted that, in fact, challenging the decision of the election commission akin to the one which is under challenge in this writ petition one of the signatories to the No Confidence Motion Smt. Vijayakumari who was the respondent in OP No.8/09 filed WP(C)No.311/2010 before this Court and after considering all the decisions on the issue, the said writ petition was dismissed holding that the conduct of the petitioner therein viz., Smt.Vijayakumari would amount to voluntarily giving up the membership from the political party to which she belonged. Further, it was held that the fact that there was no whip would not and could not make any difference at all in such circumstances especially, when there WPC.1009/2011 : 15 : was no material or evidence to show that permission was granted to cast conscious vote. Based on such findings this Court refused to interfere with the conclusion arrived at by the Kerala State Election Commission. The only other point that calls for consideration with respect to the contention of the petitioner in the case on hand, is the one made relying on the decision of this Court reported in **Chinnamma Varghese v. State Election Commission(2010(3) KLT 426)** . According to the petitioner, signing in the notice of No Confidence Motion per se would not attract disqualification on ground of defection. Relying on the said decision it is contended that if there was no written direction issued by the political party on the No Confidence Motion the overt act of abstaining from or voting in favour of No Confidence Motion would not amount to voluntarily giving up the membership from one's own party. In this case, the petitioner though got a case that the District Congress Committee has taken a decision and permitted to move No Confidence Motion, in fact no material whatsoever was produced before the commission to show that the members belonging to the Indian National Congress were WPC.1009/2011 : 16 : given liberty to cast their vote according to their will. In the absence of any such material to show that the party has given that liberty to take decision on the No Confidence Motion according to the conscience of its members, I do not think that the petitioner can legally justify his overt action in voting in favour of the No Confidence Motion. In the said circumstances, irresistible conclusion can only be that the petitioner, cast his vote against the interest of the party. In view of the position discernible from the facts and especially taken note of the decision in WPC 311/2010, I am of the view that there is no reason whatsoever, to interfere with the decision of the Election Commission. There is no merit in this writ petition and according it is dismissed. Sd/- **(C.T. RAVIKUMAR, JUDGE)** jma //true copy// P.A to Judge