Cherian P. Lob v. Kerala State Election Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 WP(C).No. 14512 of 2010(L) -------------------------- PETITIONER: --------------- CHERIAN P. LOB,PUTHENPURACKAL HOUSE, KAKKOOR KARA,NATTAKOM PO,NATTAKOM VILLAGE, KOTTAYAM DISTRICT(MEMBER,WARD NO.11,NATTAKOM GRAMA PANCHAYAT). BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: --------------- 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY. 2. SHRI.NATTAKOM SURESH,S/O.SADASIVAN, KALABHAVAN,MARIYAPPALLI PO,NATTAKOM VILLAGE, KOTTAYAM DISTRICT. ADDL.R3. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. (ADDL.R3 IMPLEADED AS PER ORDER DATED 10.6.2010 IN I.A.No. 6906/10 IN W.P. (C)No.14512/10) ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.JOHNSON MANAYANI FOR R2 SRI.BENHUR JOSEPH MANAYANI FOR R2 SRI.C.S.SUNIL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010 ALONG WITH WPC NO. 14513 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No. NO.14512/2010 ## APPENDIX ## PETITIONERS EXHIBITS: - EXT.P1. TRUE COPY OF THE PETITION FILED BEFORE THE ELECTION COMMISSION BY THE 2ND RESPONDENT NUMBERED AS OP NO.53/2009 DT. 18.8.2009. - EXT.P2. TRUE COPY OF THE OBJECTION DT. 22.9.2009 FILED BY THE WRIT PETITIONER BEFORE THE ELECTION COMMISSION. - EXT.P3. TRUE COPY OF THE ORDER DT. 22.4.2010 IN OP NO.53/2009 ON THE FILES OF THE KERALA STATE ELECTION COMMISSION. PA TO JUDGE /TRUE COPY/ ## **T.R.RAMACHANDRAN NAIR,J. -----------------------------------------W.P.(C)Nos.14512 & 14513 of 2010 ---------------------------------------------------DATED THIS THE 10[th] DAY OF JUNE, 2010** ## **JUDGMENT** These two Writ Petitions have been filed by the respective members of the Nattakom Grama Panchayat who have been ordered to be disqualified by the Election Commission as per the common order issued, which is produced as Exhibit P3. Petitions for disqualifying them were filed by the contesting party respondents. The disqualification was alleged mainly on two grounds. One is the violation of the whip issued by the Parliamentary Party and the Political Party to defeat the motion of no confidence. The other is regarding the voluntary giving up of the membership of the political party to which they belong. The Election Commission found against the party respondents regarding the allegations concerning the violation of whip. The case of the 2[nd] respondent that the petitioners have voluntarily given up the membership of the party has been accepted. Thus the petitioners have been found disqualified under the Kerala Local Authorities (Prohibition of Defection)Act. 2. Heard the learned counsel for the petitioners W.P.(C)Nos.14512 & 14513/10 -2- Shri Bechu Kurian Thomas, Adv.Shri Johnson Manayani, the learned counsel appearing for the contesting respondent and Shri Murali Purushothaman, the learned Standing Counsel for the Election Commission. The learned counsel for the petitioners submitted that even going by the averments in the petition Exhibit P1, it can be seen that the main ground alleged is that the petitioners have acted against the whip issued by the Political Party as well as the Parliamentary Party and the issue whether they have voluntarily given up the membership of the party is clearly interlinked with the alleged violation of whip and therefore when it is found that there was no valid whip, the 2[nd] ground also automatically falls to the ground. It is further pointed out that the pleadings required for sustaining the allegation regarding voluntary giving up of the membership of the party are insufficient and therefore the Commission was not correct in accepting the same for disqualifying the petitioners from membership. 3. So far as the pleadings are concerned, the averments in paragraphs 8 and 9 of Exhibit P1 are relevant to consider the question of voluntary giving up of the membership of the party. W.P.(C)Nos.14512 & 14513/10 -3- In paragraph 8 it is alleged that since the respondent/petitioner has voluntarily given up his membership and moved and voted no confidence against the President sponsored by the Congress, he is disqualified to continue as member of the Nattakam Grama Panchayat. In paragraph 9, the allegation is that a voting in favour of no confidence motion outseating the President with the support of LDF are sufficient to hold that he has voluntarily abandoned his membership. It is clear that sufficient pleas have been raised by the 2[nd] respondent in the petition Exhibit P1. 4. The motion of no confidence against the President was moved by the petitioner in W.P.(C)No.14512/2010 and it was seconded by the petitioner in W.P.(C)No.14513/10. The relevant evidence was discussed by the Commission in paragraphs 9 and 10. The Commission found that the respondents, i.e., the petitioners herein have admitted that they were elected to the Panchayat as the official candidates of the Congress and that they have supported the petitioner(2[nd] respondent herein) when he was nominated as the presidential candidate in 2005 and they have moved and seconded the no confidence motion against the President of the Panchayat, their own colleague. The fact that W.P.(C)Nos.14512 & 14513/10 -4- they did not get any direction in writing from the leadership of the DCC to move the no confidence motion and support it is relevant. Finally, it is observed that the evidence show that they have joined hands with the rival LDF members to move and pass the no confidence motions. The Commission observed further that there is no proof to the effect that the Congress Parliamentary Party has authorised them to move the no confidence motion against the President and six members of the Congress, did not support the no confidence motion also. Certain subsequent events with regard to the election held later have also been referred to in the order. Ultimately, therefore, it was found that these facts clearly prove that the petitioners herein have acted against the interest of the party by moving no confidence motion against their own colleague. 5. It is submitted by the learned counsel for the petitioners that the legal issue raised herein requires a re-examination of the dictum laid down in **Varghese v. Kerala State Election Commission(2009(3) KLT 1)** . The Act of voluntary giving up of membership of a political party definitely amounts to defection. The Apex Court in **Ravi S.Naik v. Union** W.P.(C)Nos.14512 & 14513/10 -5- **of India and others (AIR 1994 SC 1558)** held that voluntary giving up of membership is not synonymous with resignation. A Division Bench of this Court in **Shajahan** v. **Chathannoor Grama Panchayat (2002 (2) KLJ 451)** held that voluntarily giving up of membership has a wider meaning than resignation. In fact the Apex Court in **Ravi Naik** 's case (Supra) had held that an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the Political Party to which he belongs. All these were considered by the Division Bench in **Varghese** 's case (supra) and it was held by the Bench that “the moment one becomes disloyal by his conduct to the political party, the inevitable inference that can be drawn is voluntarily giving up of membership”. The Bench also took the view that unless there is a whip issued by the party allowing the member to vote in accordance with his conscience, then the member is entitled and liable to cast only a conscious vote. The learned counsel for the petitioners submitted that the said wider import given to the expression 'voluntary giving up' is not in tune with the statutory scheme under the Act. Of course, the Division Bench was examining the matter in the light of the various W.P.(C)Nos.14512 & 14513/10 -6- principles which were laid down by the Apex Court and by this Court. The particular concept of voluntary giving up of the membership of the party implies acting against the interest of the party. It is in the said context that the importance of conscience vote was brought in by the Bench to consider the expanded meaning of the expression voluntary giving up of membership in the political party. Even though the learned counsel for the petitioners wanted to canvass the correctness of the said decision of the Bench, it cannot be said that the view taken is against the statutory scheme and not in accordance with the principles laid down by the Apex Court. Since the dictum laid down therein squarely applies, the petitioners are not entitled to succeed in the Writ Petitions. 6. The evidence herein clearly shows that the petitioners are the mover and the seconder of the no confidence motion against their own party man. Of course the learned counsel for the petitioners argued that since the other members abstained from voting, it cannot be conclusively held that they have acted against the interest of the party. Since the conduct of the petitioners are relevant, the only conclusion that can be drawn W.P.(C)Nos.14512 & 14513/10 -7- from their conduct is that they have voluntarily given up their membership of the party. In that view of the matter, it cannot be said that the Election Commission has misread the evidence or perversely arrived at a conclusion against the statutory scheme. I am therefore of the view that the order does not call for any interference. The other ground raised by the petitioners in these Writ Petitions are regarding the validity of the provisions of the Act concerning disqualification. The question is no longer in res integra in the light of the decision of a Constitution Bench of the Hon'ble Supreme Court in **Kohoto Hollohan** v. **Zachillhu (1992 Suppl.(2)SCC 651)** . In that view of the matter the said question does not call for any adjudication. The Writ Petitions are thus dismissed. No costs. ## T.R.RAMACHANDRAN NAIR, JUDGE. dsn