Jiji Saji v. State of Kerala, State Election Commission and Konni Block Panchayat and Praveen Plavilayil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945** **WP(C) NO. 23603 OF 2023** **AGAINST THE ORDER IN OP NO.20/2021 OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM** ## **PETITIONER:** **JIJI SAJI AGED 49 YEARS W/O SAJI P GEORGE, PUTHENVILAYIL, VELLAPPARA P.O., PATHANAMTHITTA, PIN – 689691** **BY ADVS. P.K.VARGHESE M.T.SAMEER DHANESH V.MADHAVAN R.ROHITH K.R.ARUN KRISHNAN JERRY MATHEW** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695007** **2 STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTION COMMISSION VIKHAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN – 695033** W.P.(C) No.23603/2023 : 2 : - **3 PRAVEEN PLAVILAYIL S/O VARADARAJAN, PLAVILAYIL VEEDU, MANGARAM, KONNI P.O., PATHANAMTHITTA, PIN – 689691** - **4 KONNI BLOCK PANCHAYAT KIZHAVALLOOR, KERALA, PIN - 689691 REPRESENTED ITS SECRETARY** **BY ADVS.** **SRI.DEEPU LAL MOHAN, STANDING COUNSEL, STATE ELECTION COMMISSION SRI.V.K. SUNIL, STANDING COUNSEL, KONNI GRAMA PANCHAYAT SMT.DEEPA.N., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.23603/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.23603 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 1[st] day of August, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner is before this Court seeking to set aside Ext.P2 disqualification order dated 04.07.2023 passed by the 2[nd] respondent-State Election Commission. 2. The 3[rd] respondent in the writ petition is the elected Member of Ward No.4 of the Konni Block Panchayat in the general election held to the Local Self Government Institutions during December, 2020. In the same election, the petitioner was elected as Member from Ward No.13. 3. The 3[rd] respondent filed OP No.20/2021 before the State Election Commission alleging that he and the petitioner contested and won the elections as official candidates of Indian National Congress (INC). After the election, the 3[rd] W.P.(C) No.23603/2023 : 4 : respondent and the petitioner gave sworn declarations disclosing their association with INC. The 3[rd] respondent alleged that the United Democratic Front (UDF) of which INC is a constituent proposed M.V. Ambili as the President of the Panchayat. 4. The Left Democratic Front (LDF) Members moved a No Confidence Motion against the President of Block Panchayat which was tabled for discussion on 28.07.2021. The President, Pathanamthitta District Congress Committee had issued a direction in writing / whip dated 26.07.2021 directing the petitioner and the 3[rd] respondent to cast vote against the No Confidence Motion. On 28.07.2021, in the meeting called for discussing No Confidence Motion, the petitioner voted in favour of the No Confidence Motion moved by the LDF. Consequently, official candidate of INC/UDF was unseated from the post of President, it was alleged. 5. The petitioner resisted the OP. The petitioner stated that she contested an independent candidate to the W.P.(C) No.23603/2023 : 5 : Block Panchayat and she is not a member of INC or any other political party. The petitioner contested in party symbol on condition that she will be entitled to adopt independent stands and policies. The petitioner stated that the No Confidence Motion against M.V. Ambili was moved with the consensus of all Members of the Panchayat. The petitioner disputed the authority of the President of District Congress Committee to issue any direction in writing / whip to the petitioner. No whip was served on the petitioner. There is no valid whip or direction in writing binding the petitioner. 6. The 2[nd] respondent-Election Commission allowed the OP and declared that the petitioner is disqualified under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act as per Ext.P2 order dated 04.07.2023. Ext.P2 order is illegal and arbitrary, contends the petitioner. 7. The petitioner states that the 2[nd] respondent ought to have found that no whip was served on the petitioner. Rule 4(1) and Rule 4(2) were not satisfied to constitute an effective whip. Rule 4 specifically provides that while issuing W.P.(C) No.23603/2023 : 6 : a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post, it shall be done along with acknowledgment due. While effecting affixure, it shall be done in the presence of two witnesses. A copy of the whip shall be furnished to the Secretary. 8. Before concluding that the petitioner has constructive knowledge about the directions in writing/whip, the Election Commission ought to have considered that no evidence or material was placed to establish that the decision was taken in the meeting of the political party. The Commission should not have relied exclusively on oral evidence in the matter of affixture of whip. The evidence adduced by PW4, PW5, PW6 and RW5 were mutually contradictory. 9. It was contended on behalf of the petitioner that Rule 3(2) was not complied with. Unless Rule 3(2) is complied with, there is no question of disqualification under Rule 3(1)(a). There is no clinching evidence to conclude that W.P.(C) No.23603/2023 : 7 : Rule 3(2) is complied with. The Secretary who was in charge during the relevant time was not examined. The Secretary who was examined had no personal knowledge in the matter. 10. On behalf of the petitioner, it is further urged that going by Ext.X4 Distribution register, the passage of No Confidence Motion is recorded at serial No.1468, on 28.07.2021. The whip therefore necessarily ought to have been issued before 28.07.2021. However, in Ext.X4 Distribution Register, the whip was recorded at serial No.1472 which is subsequent to the passing of No Confidence Motion. This itself would show that the documents were manipulated. Since the issuance of whip is not proved conclusively, there is no question of disqualification. 11. The petitioner relied on the judgment of this Court in _**Jomon K.L. v. Kerala State Election Commission, Thiruvananthapuram** [2021 KHC 3056]_ and argued that in the absence of any finding that the whip was served on the Secretary of the Local Body, there cannot be a valid service W.P.(C) No.23603/2023 : 8 : of whip, and if there is no valid service of whip, a member cannot be disqualified with reference to the second limb of Section 3(1)(a) of the Act, 1999. Ext.P2 order of disqualification passed by the Election Commission is therefore liable to be set aside. The petitioner further pointed out that it is not based on the allegation that the petitioner has joined LDF that he has been disqualified. It is for the alleged violation of whip that the petitioner is disqualified. Since there is no proof of a valid whip, the disqualification of the petitioner cannot be sustained in the eye of law. 12. The Standing Counsel for the Kerala State Election Commission entered appearance and resisted the writ petition. The Standing Counsel pointed out that the Original Petition was filed by the 3[rd] respondent raising both grounds, for disqualification, under Section 3(1)(a) and 3(1) (b). The specific allegation of the 3[rd] respondent was that a direction in writing / whip was served on the petitioner through the Secretary of District Congress Committee, but on knowing about the contents of the whip, the petitioner W.P.(C) No.23603/2023 : 9 : purposefully left her house and refused to accept the whip. Hence, the whip was affixed at the petitioner's residence in the presence of witnesses. The 3[rd] respondent alleged that the petitioner has withdrawn from the INC and also defied the valid direction given by the District President of the INC. 13. The Standing Counsel further pointed out that Ext.A1 statutory declaration given by the members were produced. The Secretary's register was also marked as Ext.A2. The whip and photographs showing affixture of whip, along with mahazar were produced and marked as Exts.A3 to A5. Ext.A7 copy of acknowledgment of whip served on the Secretary of Block Panchayat was also there before the Election Commission. Ext.A8 minutes proved that the petitioner has voted against the President of her own party. Ext.A9 established that the petitioner contested as President against the presidential candidate of her own political party. 14. The Standing Counsel further pointed out that though the State Election Commission confined its final order on the issue of violation of whip, the issue of defection was W.P.(C) No.23603/2023 : 10 : also considered by the State Election Commission. Relying on the judgment in _**Varghese V.V. and another v. Kerala State Election Commission and another** [2009 (3) KLT 1]_ , the Standing Counsel argued that in the absence of a specific whip for conscious vote, an elected member, under law, is entitled and liable to cast only a conscious vote, being aware of the consequences of his decision in terms of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on disqualification on the ground of defection on account of voluntary giving up membership from the political party. 15. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 2[nd] respondent-Election Commission. I have also heard the Senior Government Pleader representing the 1[st] respondent. 16. The issue arising for consideration is whether Ext.P2 order of the 2[nd] respondent-Election Commission disqualifying the petitioner under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 W.P.(C) No.23603/2023 : 11 : is legal and justifiable. Ext.P1 petition for declaration of disqualification filed by the 3[rd] respondent under Section 3 and Section 4(1) of the Act, 1999 would indicate that the 3[rd] respondent had sought for disqualification of the petitioner both under Section 3(1)(a) and 3(1)(b). In Ext.P1 petition, the 3[rd] respondent alleged that the petitioner violated the valid whip served on the petitioner by voting in favour of the No Confidence Motion moved by the LDF. Ext.P1 further urged that the petitioner has moved against the INC candidate and thereby voluntarily gave up his membership of INC. 17. The prime defence of the petitioner is that there is no valid whip served on the petitioner so as to warrant disqualification. Ext.X1 document would establish that the petitioner has given a statutory declaration aligning with INC/UDF. Ext.X3 includes the copy of the whip served on the Secretary. Ext.A3 document is the copy of whip. 18. It has come out in evidence that the person who was entrusted to serve the whip informed the Secretary over W.P.(C) No.23603/2023 : 12 : phone about the non-acceptance of whip. Therefore, the whip was directed to be served by affixture. The DCC General Secretary and two Block Panchayat Members went for serving whip by affixing. All of them have signed Ext.A5 document. PW4 who is the DCC General Secretary of Pathanamthitta identified the signature appeared in Ext.P5 that the signature of DCC President Babu George. 19. PW4 further stated that the service of whip to the respondent was entrusted to him by the DCC President and that he has carried out the direction along with Block Panchayat Members K.R. Pramod and Sreekala Nair. 20. PW5 also deposed that the signature seen in Ext.A5 is his name. He also stated that the DCC President has authorised him to serve the whip. PW6 also stated that she has signed Ext.A5 as witness No.2. In the circumstances, it cannot be said that Rule 4(1) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 is violated. W.P.(C) No.23603/2023 : 13 : 21. Taking into consideration the oral and documentary evidence adduced, the Election Commission concluded that the petitioner was elected to the Konni Block Panchayat as a candidate of INC in its symbol “Hand”. In the No Confidence Motion moved on 28.07.2021, the petitioner voted in favour of the No Confidence Motion in defiance of the whip issued by the DCC President, Pathanamthitta. The said act of the petitioner attracted the first limb of Section 3(1)(a). 22. In the facts and circumstances of the case, the Election Commission rightly held that there is a valid whip and that the petitioner has violated the whip. Such action of disloyalty would amount to voluntarily giving up membership of the particular political party. The finding of the Election Commission that the petitioner had constructive knowledge of the direction in writing/whip and that the direction in writing/whip was issued following the procedure as mandated under the Rules is therefore liable to be upheld. W.P.(C) No.23603/2023 : 14 : In the facts and circumstances of the case, I find no reason to interfere with Ext.P2 order passed by the 2[nd] respondent-Election Commission. The writ petition therefore fails and it is consequently dismissed. Sd/- **N. NAGARESH, JUDGE** aks/01.08.2023 W.P.(C) No.23603/2023 : 15 : ## **APPENDIX OF WP(C) 23603/2023** **PETITIONER'S EXHIBITS** **Exhibit-P1 A TRUE COPY OF THE ORIGINAL PETITION NO.20/2021 PREFERRED BY 3RD RESPONDENT BEFORE THE STATE ELECTION COMMISSION DATED 03.08.2021** **Exhibit-P2 A TRUE COPY OF THE ORDER OF THE STATE ELECTION COMMISSION IN OP NO.20/2021 DATED 04.07.2023** **Exhibit-P3** **A TRUE COPY OF THE NOTIFICATION NO.B2/172/2023-SEC DATED 21.07.2023 ISSUED BY THE 2ND RESPONDENT.**