Chirayakkodu Vijayan v. Kerala State Election Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** ## **WP(C).No.6540 of 2019** ## **PETITIONER/S:** **CHIRAYAKKODU VIJAYAN, AGED 62 YEARS S/O.RAGHAVAN, ANOOP BHAVAN, AMBOORI, KUTTAMALA P.O., THIRUVANANTHAPURAM - 695 505, MEMBER, WARD NO.XI, AMBOORI GRAMA PANCHAYATH.** **BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SRI.K.C.HARISH SRI.R.T.PRADEEP** ## **RESPONDENT/S:** |**1**|**KERALA STATE ELECTION COMMISSION,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**CORPORATION OFFICE COMPLEX, LMS JUNCTION,**| ||**THIRUVANANTHAPURAM - 695 033.**| |**2**|**SECRETARY, AMBOORI GRAMA PANCHAYATH,**| ||**AMBOORI, THIRUVANANTHAPURAM - 695 505.**| |**3**|**BIJU THANKAPPAN,**| ||**S/O.R.THANKAPPAN, PURUTHIPARA PERUNTHOTTATHIL**| ||**VEEDU, VAZHICHAL, KUTTAMALA P.O.,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN 695 505,**| ||**MEMBER, WARD NO.X, AMBOORI GRAMA PANCHAYATH.**| ||**BY ADVS.**| ||**SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM**| ||**SRI.S.MOHAMMED AL RAFI**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 6540 of 2019 ## **JUDGMENT** The petitioner, who was an elected member of Amboori Grama Panchayat, who contested as a candidate of Indian National Congress, has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P11 order dated 27.02.2019 of the 1[st] respondent State Election Commission in O.P.No.27 of 2018. 2. On 06.03.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on admission for the first respondent. Urgent notice on admission by special messenger was ordered to respondents 2 and 3 returnable by 08.03.2019. 3. A counter affidavit has been filed by the third respondent, opposing the reliefs sought for in this writ petition. 4. By a detailed order dated 10.04.2019, the interim relief sought for in this writ petition was declined and the said order reads thus: “The petitioner, who is an elected member of Amboori Grama Panchayath, who won as a candidate sponsored by Indian National Congress, has filed this -3- W.P.(C). No. 6540 of 2019 writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P11 order dated 27.02.2019 of the Kerala State Election Commission in O.P.No.27 of 2018, whereby that petition filed by the 3[rd] respondent stands allowed, declaring that the petitioner is disqualified for being a member of Amboori Grama Panchayath as provided by clause (a) of sub-section (1) of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. In Ext.P11 order, it is declared that the petitioner is disqualified from contesting as a candidate in an election to any local authorities for a period of six years from the date of that order, as provided by subsection (3) of Section 4 of the said Act. 2. On 06.03.2019, when this writ petition came up for admission, the learned Standing Counsel for Kerala State Election Commission took notice on admission for the 1[st] respondent. Urgent notice on admission by special messenger was ordered to respondents 2 and 3, returnable by 08.03.2019. 3. A counter affidavit has been filed by the 3[rd] respondent opposing the relief sought for in this writ petition. Despite service of notice, none appears for the 2[nd] respondent Grama Panchayath. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent State Election Commission and also the learned counsel for the 3[rd] respondent on the interim relief sought for in this writ petition, i.e., an order to stay the operation of Ext.P11, by allowing the petitioner to continue as -4- W.P.(C). No. 6540 of 2019 member of Amboori Grama Panchayath, pending disposal of this writ petition. 5. O.P.No.27 of 2018 is one filed by the 3[rd] respondent herein, under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, for declaring that the petitioner has committed defection and hence, disqualified to continue as member of the Amboori Grama Panchayath and that, he is liable to be declared as disqualified to contest as candidate in any election to the local body for a period of six years. 6. The petitioner opposed the reliefs sought for in Ext.P2 original petition by filing Ext.P2 objection dated 18.07.2018. 7. The Election Commission, after detailed consideration of the matter, passed Ext.P11 order order dated 27.02.2019, whereby Ext.P2 original petition stands allowed, declaring that the petitioner is disqualified for being a member of Amboori Grama Panchayath, as provided by clause A of sub-section (1) of Section 3 of the Act and the petitioner is disqualified from contesting as a candidate in an election to any local authorities for a period of six years from the date of that order. 8. The pleading and materials on record would show that, there are 13 wards (seats) in Amboori Grama Panchayath, out of which, Indian National Congress (INC) got 4 seats; LDF got 6 seats, BJP got 2 seats and the remaining one seat was won by an independent without the support of any political party. LDF, which got 6 seats, formed the Panchayath Committee and -5- W.P.(C). No. 6540 of 2019 Sri.B.Shaji and Smt.Anitha were elected as a President and Vice President, respectively. The members of Indian National Congress, including the petitioner herein, moved a no confidence motion against the President and Vice President, which was tabled for discussion on 26.05.2019. The DCC President, Thiruvananathapuram District, who was examined as PW3 issued whip to all the elected members of Indian National Congress directing them to attend the meeting and vote in favour of the motion. The case of the 3[rd] respondent was that, though the petitioner accepted the whip and was aware of the decision and the stand of his party in the non confidence motion, he chose to disobey the whip. He deliberately abstained from attending the meeting held on 26.05.2018. As there were no sufficient members to carry the motion, it was not carried. According to the 3[rd] respondent, who was examined as PW1, the petitioner colluded with the members of the rival political parties and willfully abstained from attending the meeting. The petitioner, thereby, betrayed his political party and disobeyed the whip and acted against the interest of his party and thereby committed defection. 9. The DCC Presiden, who was examined as PW3, has deposed that he has issued whip to all the elected members of Indian National Congress directing them to attend the meeting on 26.05.2018 and to vote in favour of the no confidence motion against the President and Vice President and Ext.A1 is the copy of -6- W.P.(C). No. 6540 of 2019 the whip issued to the petitioner. PW3 entrusted the whip to PW2, the Mandalam President, to serve the same to the members including the petitioner. The petitioner accepted the whip and put his signature with date on the copy of the whip acknowledging the receipt of the same. The copy of the whip containing that acknowledgment was marked through PW3, as Ext.X1. PW3 has deposed further that, the petitioner violated the whip and abstained from attending the meeting on 26.05.2018 to help LDF and thereby, acted against the interest of his political party. 10. The petitioner, who was examined as RW1 has deposed that, no whip issued by his party was served on him and that, his absence on 26.05.2018 was not willful. His abstention on the meeting on 26.05.2018 as on account of his illness. On the evening of 24.05.2018, he felt chest pain and was admitted in NIMS Hospital, Neyyattinkara. He was discharged from that hospital only in the morning of 27.05.2018. It was only on account of his illness and hospitalisation he could not attend the meeting on 26.05.2018. According to RW1, he did not do any act of defection. To support the case of illness, RW1 placed reliance on Ext.B1 discharge summary and also the evidence of RW2, who is a Cardiologist working in, NIMS Hospital, Neyyattinkara. RW1 has deposed that the signature found in Ext.B1 is not of his and he does not know whose signature found in Ext.B1 is not of his and he does not know whose signature Ext.B1 bears. RW2 has deposed that a person having the complaints stated in -7- W.P.(C). No. 6540 of 2019 Ext.B1 discharge summary would normally be discharged on the next day itself and that, there was no abnormal siutation in the case of the petitioner herein. All the tests were negative and his condition was normal. From Ext.B1 and the evidence of RW2, the Election Commission came to the conclusion that the petitioner was not suffering from any serious illness, which disabled him from attending the meeting held on 26.05.2018. 11. In Ext.P11 order, the Election Commission noticed that nowhere in the chief affidavit RW1 has any complaint against Ext.X1 acknowledgment. He did not even refer Ext.X1 in his chief affidavit. PW2 handed over the copy of the whip containing the acknowledgment of RW1 to PW3, who is the DCC President and it was PW3 who produced Ext.X1. When PW3 was cross examined, there was not even a suggestion that Ext.X1 was created by PW3 for the purpose of the case. In his anxiety to deny the signature in Ext.X1, RW1 at one stage even denied his signature in the chief affidavit, when it was shown to him. The Election Commission noticed that a mere comparison of the admitted signatures of the petitioner herein in his vakalath, counter statement and deposition, with the signature in Ext.X1 would reveal that the signature of RW1 found in Ext.X1 is similar to his admitted signature in the aforesaid documents. 12. During the course of arguments, the learned counsel for the petitioner would contend that there -8- W.P.(C). No. 6540 of 2019 was no decision by the Parliamentary Committee as to the manner in which a member has to act in the no confidence motion and in the said circumstances, merely for the reason that the petitioner has violated the whip, it cannot be said that the petitioner has voluntarily given up his membership of the political party. The learned Standing Counsel for the State Election Commission and also the learned counsel for the 3[rd] respondent would point out that, the petitioner has no such case in Ext.P3 objection. He has also not raised any such issue during trial and that, the DCC President who was examined as PW3, has deposed that he has issued whip to all Congress members to vote in favour of the no confidence motion and that, the no confidence motion was moved based on the decision of the DCC. 13. As reiterated by a Division Bench of this Court in **Eruthavoor Chandran and another v. Kerala State Election Commission and others [2018 (5)** **KHC 964]** where a member of a political party is aware of the decision taken by the political party, but had failed to act in accordance with the political directive, it would amount to voluntarily abandoning the membership of the political party and he would be disqualified under sub-section (1) of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 14. It was after a detailed consideration of the pleadings and materials on record that the State Election Commission in Ext.P11 order came to the -9- W.P.(C). No. 6540 of 2019 conclusion that the petitioner herein has committed defection and he has voluntarily given up his membership of the political party which elected him as a member, as provided by clause (a) of sub-section (1) of Section 3 of the Act and therefore, he became subject to qualification for being a member of Amboori Grama Panchayat. The petitioner has not made out a _prima facie_ case for grant the interim relief sought for in this writ petition. In such circumstances, the interim relief sought for is declined. Post on 28.05.2019 for further consideration.” 5. Today when the case is taken up for consideration, the learned counsel for the petitioner would submit that since the State Election Commission has already conducted election in the vacancy occurred on account of Ext.P11 order, the petitioner do not want to prosecute this writ petition further. Recording the above submission made by the learned counsel for the petitioner, this writ petition is dismissed. **Sd/ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 6540 of 2019 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ACKNOWLEDGMENT OF WHIP DATED 21/5/2018 SERVED ON PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE O.P.NO.27/2018 DATED 4/6/2018 BY 3RD RESPONDENT BEFORE 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 18/7/2018 IN O.P.NO.27/2018 BY PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE WHIP PRODUCED AS X1 WHICH PURPORTED TO HAVE CONTAINED THE SIGNATURE PETITIONER DATED 21/5/2018.** - **EXHIBIT P5 TRUE COPY OF THE DISCHARGE SUMMARY DATED 27/5/2018.** - **EXHIBIT P6 TRUE COPY OF AFFIDAVIT SWORN BY 3RD RESPONDENT DATED 30/7/2018 IN LIEU OF EXAMIANTION IN CHIEF.** - **EXHIBIT P7 TRUE COPY OF THE CROSS-EXAMINATION OF 3RD RESPONDENT DATE 17/8/2018.** - **EXHIBIT P8 TRUE COPY OF THE CHIEF EXAMINATION AND CROSS-EXAMINATION OF PW3 DATED 28/9/2018.** - **EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT SWORN BY PETITIONER DATED 23/11/2018 IN LIEU OF EXAMINATION IN CHIEF.** - **EXHIBIT P10 TRUE COPY OF THE CROSS-EXAMINATION DATED 23/11/2018 OF PETITIONER.** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 27/2/2019 IN O.P.NO.27/2018 BY 1ST RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** -11- W.P.(C). No. 6540 of 2019 **EXHIBIT -R3(A)** TRUE COPY OF THE DEPOSITION OF CARDIOLOGIST, NIMS HOSPITAL, NEYYATTINKARA.