Daiys Tomy v. Kerala State Electricity Commission & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 ## _**WP(C).No. 19327 of 2011(M)**_ ## _**--------------------------**_ PETITIONER: --------------- DAIYS TOMY, MEMBER WARD NO.5, PUTHENVELIKKARA GRAMA PANCHAYATH, RESIDING AT KALLARAKKAL, ELANTHIKKARA PO, PUTHENVELIKKARA, ERNAKULAM DISTRICT. BY ADV. MR. T.A.SHAJI MR. AMJAD ALI MR. MANSOOR.B.H. RESPONDENTS: - --------------- 1. THE KERALA STATE ELECTRICITY COMMISSION, THIRUVANANTHAPURAM, PIN 695033. 2. ULLASAN, PATHIKKERIL, PUTHENVELIKKARA P.O., ERNAKULAM DSITRICT, PIN 683512. 3. THE PUTHENVELIKKARA GRAMA PANCHAYATH, PUTHENVELIKKARA, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY-683512. R1 BY ADV. MR. MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R2 MR. GEORGE POONTHOTTAM R3 MR. P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/08/2011, ALONG WITH W.A NO.1248 OF 2011, THE COURT ON 22/08/2011 DELIVERED THE FOLLOWING: ## _**W.P.(C) NO. 19327 OF 2011**_ ## _**APPENDIX**_ ## **PETITIONER'S EXHIBITS :** EXT. P1 : A COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER DATED 23.12.2010 EXT. P2 : A COPY OF THE ORDER PASSED BY THE KERALA STATE ELECTION COMMISSION IN O.P. NO. 50/2010 DATED 13.07.2011 EXT.P3 : A TRUE COPY OF THE LETTER DATED 29.12.2010 ADRESSED TO THE PETTIIONER BY THE THEN LEADER OF OPPOSITION MR. OMMAN CHANDY EXT. P4 : A TRUE COPY OF THE COMMUNICATION DATED 16.06.2011 ISSUED TO THE PETITIONER FROM KERALA PRADESH CONGRESS COMMITTEE /TRUE COPY/ P.A. TO JUDGE ## **HARUN-UL-RASHID, J.** **---------------------------------------** ## **W.P.(C) No. 19327 of 2011** **--------------------------------------Dated this the 1[st ] day of August 2011.** ## **O R D E R** This writ petition is filed seeking to quash Ext.P2 final order passed by the Kerala State Election Commission Trivandrum. By Ext.P2 order the Election Commission allowed O.P. 50/2010 and declared that the petitioner (respondent in O.P.50/2010) is disqualified for being a member of the Puthenvelikara Grama Panchayat as provided by Section 3 of the Kerala Local Authorities prohibition of Defection Act 1999 and that she is disqualified for contesting as a candidate in election to any Local authorities for 6 years. 2. The 2[nd] respondent in this writ petition as petitioner filed O.P.No.50/2010 seeking disqualification of the petitioner herein as provided by section 3 of the Kerala Local Authorities ( Prohibition of Defection) Act. Section 3(1) of the Act reads as follows: W.P. C No. 19327 /2011 2 _“If a member of the local authority belonging to any political party voluntarily gives up his membership of such political party or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorized by it in this behalf in the manner prescribed, votes or abstains from voting, in a meeting of the Panchayat in an election to its President or Vice President or of the Municipality in an election of its Chairperson or Deputy Chairperson, a member of Standing Committee or the Chairman of the Standing Committee, he shall be disqualified for being a member of that local authority”._ The following facts are not disputed. 3. The petitioner and the 2[nd] respondent were the candidates of Indian National Congress. In Ext.X2 declaration it is stated that the petitioner belongs to Indian national congress and that Indian National Congress is a constituent of UDF. From Ext.X2, it is seen that 9 members including the petitioner belonging to Indian National Congress were elected as members. From Ext.X3 register, it is seen that out of total number of 17 seats, 9 members of Indian National Congress under UDF and 8 members of LDF were elected. The post of President in Puthenvelikkara Grama Panchayat is reserved for women. In the meeting of the UDF Parliamentary party members convened W.P. C No. 19327 /2011 3 on1.11.2010 the Parliamentary party elected Mrs.Sheena Sebastian as the Presidential candidate and the petitioner as Vice Presidential candidate. The petitioner had participated in the meeting held on 1.11.2010. The election was held on 8.11.2010. In the election held all the LDF members as well as the petitioner herein voted in favour of the LDF candidates. The petitioner got 9 votes and was declared elected as President. The 2[nd] respondent got 8 votes. The LDF candidate who got 9 votes was elected as Vice President. 4. The case of the 2[nd] respondent is that the petitioner had violated the directions of the Congress party, joined the LDF camp and got elected as the President and also voted in favour of the LDF candidate for the Vice Presidentship election and thus committed defection. The case of the 2[nd] respondent as petitioner before the Kerala State election Commission is that the conduct of the respondent(petitioner herein) having contested the election against the official candidate of Indian National congress and voted against the official Presidential and Vice Presidential candidate of Indian national Congress would amount to defection as per the provisions of the Kerala Local Authorities (Prohibition of Defection) Act. W.P. C No. 19327 /2011 4 5. The State Election Commission passed Ext.P2 order after considering the evidence on record. Oral and documentary evidence were adduced by the parties. The petitioner who is the respondent before the State Election Commission admitted that She had participated in the meeting of the Parliamentary Committee held by the Indian National Congress. She also admit that the majority of the members proposed the name of Mrs. Sheena Sebastian as the President and since the respondent is not ready to accept the said decision, she left the meeting. She also admitted that she was fully aware of the fact that official candidate of the Indian National Congress for the Presidentship was Mrs. Sheena Sebastian. It is further admitted by the petitioner that her name was proposed and supported by members of LDF in the election to the President held on 8.11.2010. In her deposition she has also stated that she did not participated in the election campaign of the Congress candidate for the Assembly Election and that she is moving along with the LDF members as they supported her to become the President of the Panchayat. 6. The Election commission following the evidence on record held that it is clearly established that the respondent ( petitioner W.P. C No. 19327 /2011 5 herein) was set up as an official candidate of Indian National Congress in the election to the Panchayat held on October 2010 and after election as a member, she contested the election to the President of the Panchayat against the official candidate of the Indian National Congress. 7. In the Act, a member can be disqualified if he has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a direction issued by the political party. The State Election Commission on an appreciation of the evidence found that the petitioner herein has acted against the directions of her party leadership and she was allying with the rival coalition and became the President of the Panchayat by contesting against the official candidate of her own party and also moved along with the LDF and voted in favour of their candidate for the election of Vice President. The State Election Commission also referred to and followed the various decisions of this Court . The Division Bench of this Court in **Shajahan** v. **Chathannoor Grama Panchayat and others (2000 KHC283)** held that by voting against the political party to which the member belonged, he had voluntarily given up his membership of that party and W.P. C No. 19327 /2011 6 was therefore disqualified. In the judgment in writ petition No. 2351/2005 this Court held that acceptance of the nomination by the appellant as a candidate against the official candidate of the party amounts to voluntarily abandonment of membership of the political party. The aforesaid decision and other decisions are followed by the State Election Commission. The State Election Commission also noted the facts, law and concluded that the respondent have committed defection and she had voluntarily given up her membership from Indian National Congress which set up her as a candidate in the Panchayat election and was therefore disqualified. In the above said factual and legal background this Court is of the view that the interim order passed by this court is liable to be vacated. Accordingly the interim order is vacated. **HARUN-UL-RASHID JUDGE** al