Jaison Karakkat v. K.C. Chako and The State Election Commission

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** **WP(C).No. 14986 of 2014 (W)** **----------------------------** **PETITIONER(S):** **--------------** **JAISON KARAKKAT KARAKKAT HOUSE, CHARAL P.O, THALASSERY TALUK KANNUR DISTRICT, PIN 670 706.** **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **--------------** **1. K.C.CHAKO, KAVUNGAL HOUSE, KOOMANTHODE P.O, THALASSERY TALUK KANNUR DISTRICT, PIN 670 706.** **2. THE STATE ELECTION COMMISSION REPRESENTED BY THE SECRETARY THIRUVANANTHAPURAM 695 001.** **R1 BY ADV. SRI.K.RAMAKUMAR (SR.) R1 BY ADV. SRI.S.M.PRASANTH R1 BY ADV. SMT.ASHA BABU R1 BY ADV. SMT.AMMU CHARLES R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2014, ALONG WITH WPC. 14989/2014 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bka/-** **WP(C).No. 14986 of 2014 (W)** ## **----------------------------** ## **APPENDIX** **PETITIONER'(S) EXHIBITS:** **EXHIBIT P1. COPY OF THE NO CONFIDENCE MOTION DATED 16.5.2013.** **EXHIBIT P2. COPY OF THE OP NO.30/2013 FILED BEFORE THE KERALA STATE ELECTION COMMISSION.** **EXHIBIT P3. COPY OF THE WRITTEN STATEMENT FILED IN OP NO.30/2013 BEFORE THE STATE ELECTION COMMISSION.** **EXHIBIT P4. COPY OF THE OP NO.24/2013 FILED BEFORE THE KERALA STATE ELECTION COMMISSION.** **EXHIBIT P5. COPY OF THE WRITTEN STATEMENT FILED IN OP NO.24/2013 FILED BEFORE THE STATE ELECTION COMMISSION.** **EXHIBIT P6. COPY OF THE COMMON ORDER DATED 4.6.14 IN OP NOS. 21/2013, 22/2013, 23/2013, 24/2013, 25/2013, 26/2013, 27/2013, 28/2013, 29/2013, 30/2013, 31/2013, 32/2013.** **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **bka/-** ## **A.V. RAMAKRISHNA PILLAI, J.** **--------------------------------------------------** **W.P.(C) Nos. 14986, 14989, 15231, 15232, 15233, 15234, 15235, 15236, 15237, 15238 & 15239 of 2014** **-------------------------------------------------Dated this the 10[th] day of November, 2014** ## **J U D G M E N T** Under challenge in these writ petitions are the common order of the State Election Commission (2[nd] respondent), disqualifying the petitioners in terms of Sections 3(1)(a) and 4(1) of the Act 11 of 99 in OP Nos.21/2013, 22/2013, 23/2013, 24/2013, 25/2013, 26/2013, 27/2013, 28/2013, 29/2013, 30/2013 & 31/2013. 2. There are 16 notified wards in Ayyankunnu Panchayath. The petitioners were elected as the members of the Ayyankunnu Panchayth in the year 2010. They contested the elections as candidates of Indian National Congress (I). Two candidates are elected from the Kerala Congress. Indian National Congress and Kerala Congress (M) have contested the election as a political combination by name United Democratic Front. Three members were W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** elected without the support of any political party. Two members were elected as candidates of Communist Party of India (Marxist). Out of the nine members elected as the representative of Indian National Congress (I), one member, by name, Baby Thupparambil, was disqualified by the Election Commission on the ground of disqualification for violating the whip issued by the authorized authority. Thereafter, one K.C.Chacko was elected as the President. Dissatisfied with the actions of the new President, seven members belonging to Indian National Congress (M), out of the eight surviving members, along with two members belonging to Kerala Congress (M) with the support of three independent members jointly moved a no confidence motion. As no election was held to fill up the post caused as a result of the disqualification of Sri.Baby Thupparambil, there were only 15 members in the panchayath committee. The no confidence motion was placed for debate in the meeting convened on 05.06.2013. Out of the 15 members, 14 W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** were present in the meeting and no confidence motion was passed in the meeting. The petitioners herein have exercised the right in favour of the motion presented and considered by the panchayath committee. Two members elected as members in the Grama Panchayath as candidates put by Indian National Congress, had withdrawn from the motion and voted against the no confidence motion. One independent member, by name, V.M.Thomas, though had subscribed his signature for moving the no confidence motion, also voted against the motion. One Philomina Joy, who signed the no confidence motion, did not attend the meeting as she was laid up. As already pointed out, there were only 14 members, who have participated in the meeting. 3. As a consequence to the no confidence motion, the President has been declared thereupon as removed and the same was reported to the Government and State Election Commission gazetted the cessation of Office of President. Thereafter, the 1[st] respondent in WP(C) W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** Nos.14989, 15234, 15235, 15236, 15237, 15238 & 15239 of 2014 filed OP Nos.21, 22, 23, 24 & 25 of 2013 against some of the petitioners with a prayer to declare that the petitioners committed defection; and they are disqualified to continue as members of Ayyankunnu Grama Panchayath under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and to declare that they are disqualified to contest any election to the local bodies for a period of six years. Subsequently, the aforesaid K.C.Chacko, who is the first respondent in W.P(C) No.14985 of 2014, 1523 of 2014, 15232 of 2014, 15232 of 2014 and 15233 of 2014 filed OP Nos.26, 27, 28, 29, 30 and 31 of 2013 against the remaining petitioners. The petitioners, on receipt of notice from the 2[nd] respondent, entered appearance and filed written statements pleading that the original petitions are not maintainable along with other contentions. The 2[nd] respondent permitted the parties to adduce evidence. W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** The 2[nd] respondent commission, who considered the petitions, disqualified the petitioners in terms of Sections 3(1)(a) and 4(1) of the Act 11 of 99 by the impugned common order. It is against this, the petitioners have come up before this Court. 4. The writ petitions are seriously resisted by the party respondents through detailed counter affidavits. 5. I have heard Sri.George Poonthottam, the learned counsel for the petitioners; Sri.K.Ramakumar, the learned senior counsel for the 1[st] respondent; and Sri.Murali Purushothaman, the learned Standing Counsel for the 2[nd] respondent Commission. 6. By the impugned order, the 2[nd] respondent found that the petitioners herein, by defying the whips issued by the competent persons of their political parties, had committed defection, on the ground that the petitioners have voluntarily given up their membership from the political parties, in which they belonged to as provided by the first limb of Section 3(1)(a) of the Act, W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** and they have become subjected to disqualification for being members of Ayyankunnu Grama Panchayath. 7. The learned counsel for the petitioners would submit that the aforesaid finding of the 2[nd] respondent is wrong in law. It was pointed out that there is no evidence on record based on the election petitions filed by the party respondents before the 2[nd] respondent to arrive at such a conclusion. It was argued that the members, who moved the no confidence motion, did not seek the support of the CPI(M) members for the passing of the motion as the intention in moving the no confidence motion was to demonstrate the united views of the members elected representing the UDF and to demonstrate that the President is the solitary member in the Congress party in support of his continuance as the President as against the wishes of eight Congress members in the Panchayath as well as two members elected from the Kerala Congress (M) apart from the dissatisfaction of the three independent members. It was W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** pointed out that two members in the committee representing CPI(M) opposed the no confidence motion during the debate. One independent member, who supported the no confidence motion, and two Congress members, who signed the no confidence motion against the President, also had opposed the no confidence motion at the time of debate. The learned counsel for the petitioners would argue that CPI(M) members, contrary to the open stand taken by them, exercised their vote in favour of the motion as part of their political strategy; and therefore, the petitioners cannot be branded as persons, who joined the coalition lead by the CPI(M) and thus had voluntarily given up their party membership. The argument was that the support of CPI (M) members was without the knowledge of the petitioners as it was against their open declaration against the no confidence motion. Only on account of the political strategy, they have supported the no confidence motion; it was argued. To fortify the aforesaid W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** submission, the learned counsel for the petitioners further pointed out that the 1[st] respondent and another member of the panchayath committee were elected as candidates of CPI(M) and the third person was none other than the President of the Grama Panchayath. Therefore, it can be seen that all members of the UDF and even the independent members had expressed their no confidence on the President; so submitted the learned counsel for the petitioners. According to the learned counsel, the expression of no confidence cannot be treated as an action disloyal to the party, but an action against the illegal, unjust, undemocratic conduct of the President of the Grama Panchayath, which can be voiced through the process of no confidence as well. It was pointed out that such a procedure is conducive to democratic process. 8. From the petitions filed by the 1[st] respondent before the 2[nd] respondent, it can be seen that the definite case of the party respondents was that the petitioners W.P.(C) No. 14986/2014 & conn. cases **==> picture [20 x 8] intentionally omitted <==** have violated the whip; and therefore, the petitioners should be disqualified from holding the office of member of panchayath on account of defection. It was further argued that the contention advanced by the petitioners that no valid whip has been issued to the petitioners in the manner provided, has been accepted by the 2[nd] respondent; and therefore, there cannot be an order disqualifying the petitioners under the second limb of Section 3(1)(a) of Kerala Local Authorities (Prohibition of Defection) Act, 1999. Therefore, it was argued that there is no justification in passing the impugned order based on the first limb of Section 3(1)(a) of the Act when no evidence has been adduced to attract the second limb of Section 3(1)(a) of the Act. It was pointed out that the decision arrived at by the 2[nd] respondent on this score is bad in law as the same has been arrived at without any material evidence. 9. The learned senior counsel for the party respondents, per contra, would argue that the petitioners W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** were elected as members of the Ayyankunnu Grama Panchayath as candidates of the Indian National Congress (I); and they contested the same with the symbol 'Palm' allotted by the DCC President of Kannur District. Having been elected as such, the very signing of the resolution against one's own party member, admittedly elected on the Indian National Congress ticket itself, also amounts to defection in terms of catena of decisions pronounced by this Court. The learned senior counsel would argue that moving of resolution against one's own party member evidences abandoning and voluntarily giving up of membership of that party. In support of the said argument, the learned senior counsel invited my attention to the decisions in **Varghese V.V. & Another** v. **Kerala State Election Commission & Another** [2009 (3) KHC 42], **Dharma Mani** v. **Parassala Block Panchayat** [2009 (3) KLT 29], **Shiney Augustine** v. **Kerala State Election Commission, Thiruvananthapuram & Another** [2009 (4) KHC 527] W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** and **Muhammedkunhi B. & Another** v. **K. Abdulla & Another** [2010 (4) KHC 307] and other cases. It was argued that in the light of the principle evolved by a series of decisions of this Court on the point, the petitioners have absolutely no case to make out before this Court in the petition at all. Therefore, it was argued that the order of the 2[nd] respondent impugned, does not suffer from any infirmity in law warranting interference under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. 10. It is an admitted case that the petitioners were signatories to the no confidence motion moved against the President of the panachyath belonging to their own party. The petitioners not only moved the no confidence motion, but, voted in support of it, thereby proving that they turned totally disloyal to the party and also questioned the authority of the party district leadership, which issued a whip to defeat the confidence motion. 11. The trump card of the learned counsel for the W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** petitioners is that the 2[nd] respondent has found that the second limb of Section 3(1)(a) is not attracted in this case. It is true that the 2[nd] respondent has rightly found that for attracting the second limb of Section 3(1)(a), a direction in writing issued by the political party to a member of such party should be in the manner as may be prescribed and as per Rule 4(1) of the Kerala Local Authorities (Disqualification of Defected Members) Rules. Such direction is to be read over in a meeting of the members of that political party by the person chosen from among the members by majority and if such person refuses to do so, by another person for information to the members. It was rightly found by the 2[nd] respondent that no such procedure was followed while giving direction. Therefore, the second limb of Section 3(1)(a) of the Act cannot be attracted. However, even in the absence of the whip, the very act of moving of a no confidence motion against one's own party is sufficient to hold that he has voluntarily given up the membership of that party in W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** terms of the decisions quoted above. 12. It was persuasively argued by the learned counsel for the petitioners that in all the reported cases made mention of above, motion was moved with the support of opposite party or coalition and the conclusion by the second respondent that the petitioners have voluntarily abandoned the membership is on the wrong assumption that the motion was moved with the support of the L.D.F. According to the learned counsel for the petitioners, petitioners never asked the support of the L.D.F members. They have supported the non-confidence motion as a part of their political strategy; it was argued. It was also pointed out that the original petitions filed before the second respondent does not describe the manner in which the voluntary membership was given up by the petitioners and what is included was only omnibus prayer. It was asserted that there was no desertion of leadership or the party and the action of the petitioners was only an expression of their descent and it was not a W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** conscious act with an intention to sever their connection with their political party. 13. The petitioners, by their conduct, admittedly, had entailed disqualification. What is contemplated under the Kerala Act prohibiting defection, is voluntarily giving up of membership of one's own party and violating the direction issued by the leadership of the party. It is crucial to note that the petitioners, admittedly, canvassed the votes of the members, who supported the views of the petitioners. Though it was argued that the voting of the members of the CPI(M) was in contravention of their declaration, it is an admitted fact that those members have also voted in favour of the no confidence motion. Such a situation would not have arisen if the petitioners had not ventured out with the no confidence motion. Therefore, there cannot be a more disloyal conduct than the one committed by the petitioners, which warrants disqualification under the relevant portions of law. W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** 13. It is true that the narration of facts in the petitions filed by the party respondent would reveal that the participation of persons in the voting would show that the no confidence motion was moved as a result of an internal dispute within the coalition of UDF as against the 1[st] respondent by all the members of the UDF. But, that does not mean that it is not a case of acting against the party by the members of the panchayat as argued by the learned counsel for the petitioners. Though it was argued that the decision to move the no confidence motion and further steps taken were in the background of dissent within the party, which cannot be termed as an action abandoning the party, or an action, which will attract disqualification by an act of disloyalty, the said argument does not inspire confidence. 14. Though the ground of limitation was also taken as a defence by the petitioners before the 2[nd] respondent, the 2[nd] respondent while answering Point No.(i) in the impugned order, has correctly addressed the said W.P.(C) No. 14986/2014 & conn. cases **==> picture [26 x 8] intentionally omitted <==** contention and it does not call for an interference of this Court. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioners are not entitled to succeed. In the result, the writ petitions fail; and accordingly, they are dismissed. No costs. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-