K. P. Ali v. Kerala State Election Commission and C. N. Jayadevan, Secretary, Communist Party of India Thrissur District Council

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935 WP(C).No. 8205 of 2013 (A) --------------------------- PETITIONER: ----------K.P. ALI, KARUPPAM VEETIL HOUSE, MULLASERY P.O. THRISSUR DISTRICT. BY ADVS.SRI.T.A.SHAJI (SR.) SRI.M.A.ASIF RESPONDENT(S): -------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, PIN:695 033. 2. C.N.JAYADEVAN, SECRETARY, COMMUNIST PARTY OF INDIA THRISSUR DISTRICT COUNCIL, K.K.WARRIER SMARAKAM, MANNADIAR LANE, THRISSUR-680 001. R2 BY ADV. SRI.RENJITH THAMPAN (SR.) R2 BY ADV. SMT.P.R.REENA R2 BY ADV. SRI.M.V.ANANDAN R2 BY ADV. SRI.M.R.DHANIL R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8205 of 2013 (A) -------------------------- **A P P E N D I X** PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE PETITION DATED 21.12.2011. EXHIBIT P2: TRUE COPY OF THE LETTER DATED 2.10.2011. EXHIBTI P3: TRUE COPY OF THE OBJECTION DATED 29.05.2012 FILED BY THE PETITIONER. EXHIBIT P4: TRUE COPY OF THE ORDER DATED 27.2.2013 IN O.P.25/12 OF THE 1ST RESPONDENT. EXHIBIT P5: TRUE COPY OF THE NOTIFICATION DATED 29.10.2013 OF THE KERALA STATE ELECTION COMMISSION. EXHIBIT P6: TRUE COPY OF REPLY DATED 26.12.2013 FURNISHED BY THE KERALA STATE ELECTION COMMISSION. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.8205 of 2013-A ---------------------------------------------------Dated this the 16[th] January, 2014** ## **J U D G M E N T** The petitioner has filed this Writ Petition aggrieved by Ext.P4 order of the 1[st] respondent, Kerala State Election Commission in O.P.No.25 of 2012. As per the impugned order, the petitioner has been declared as disqualified from being a member of the Mullassery Grama Panchayat. He has also been disqualified from contesting as a candidate in an election to any local authority for six years. 2. The petitioner is an elected member of the Mullassery Grama Panchayat. He was elected at the election that was conducted on 25.10.2010. He had contested the election as a candidate of the Communist Party of India, which is one of the constituent parties of the Left Democratic Front (L.D.F). He had contested the election under the symbol allotted to the Communist Party of India (C.P.I). After constitution of the Panchayat Committee, the petitioner was elected as the Vice 2 **W.P(c) No.8205 of 2013-A** President of the Grama Panchayat. The allegation against the petitioner was that, while functioning as the Vice President of the Panchayat, he had by submitting a resignation letter dated 02.10.2011 to the Secretary of the Manalur Mandalam Committee of the C.P.I, voluntarily given up his membership in the said party. It was also alleged that the said resignation letter was given to the Secretary of the Manalur Mandalam Committee only on 12.12.2011. The petitioner was therefore alleged to have become disqualified under Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as `the Act' for short). Therefore, the 2[nd] respondent, who is the Secretary of the C.P.I, Thrissur District Council, had filed O.P.No.25 of 2012 before the 1[st] respondent seeking a declaration that the petitioner had become disqualified to be a member of the Mullassery Grama Panchayat. 3. The Original Petition was contested by the petitioner, who was the respondent in the said petition, which is Ext.P1. He questioned the locus standi of the 2[nd] respondent, who had filed O.P.No.25 of 2012 before the 1[st] respondent. According to him, he had never resigned from his party as alleged. He had not given any letter to his party or the Secretary of the Mandalam 3 **W.P(c) No.8205 of 2013-A** Committee, as alleged. The resignation letter relied upon in the petition was a forged one. Since he was a Panchayat Member representing Ward No.9 of Mullassery Grama Panchayat, blank papers signed by him were available with the Mandalam Committee President, such papers having been handed over at the time of his election for filing applications and petitions before various authorities. It was also contended that the petitioner was ordinarily using his letter pad for his communications, after he became a Panchayat Member. The petitioner had no intention to resign from his party. He has been an active member of the party from 1983 onwards. There were some issues between the Mandalam Secretary and the petitioner since September, 2011. In view of the above, the Mandalam Secretary was trying to oust him from the party. It was also contended that he is still continuing to be a member of the party attending its meetings regularly and participating in the various programs of the party. He is also continuing as the Vice President of the Panchayat representing the C.P.I. He therefore contended that the petition was filed without the least bonafides. Therefore, he prayed for dismissal of the same. 4 **W.P(c) No.8205 of 2013-A** 4. The 1[st] respondent framed six points for consideration on the basis of the pleadings in the case. The Original Petition was tried. The evidence in the case consists of the oral testimonies of PWs 1 and 2 and Exts.P1 to P5 on the side of the petitioner. The respondent/writ petitioner examined himself as RW1 on his side. After closure of the evidence, the matter was heard. The 1[st] respondent, after considering the evidence on record as well as the contention of the contesting parties, held that the petition was maintainable before it and that, the petitioner had resigned from his party thereby voluntarily giving up his membership therein, attracting Section 3(1)(a) of the Act. Consequently, he has been declared disqualified from being a Member of the Mullassery Grama Panchayat and also from contesting as a candidate in an election to any local authority for a period of six years from the date of the said order. 5. According to Sri T.A.Shaji, Senior Advocate, who appears for the petitioner, the resignation letter of the petitioner that has been marked as Ext.P1 by the 1[st] respondent was a fabricated document. He admits the signature in Ext.P1. He had handed over a number of signed blank papers to the Mandalam Committee for the purpose of submitting applications and other 5 **W.P(c) No.8205 of 2013-A** petitions before various authorities during the election. It is alleged that, one Sri K.V.Vinod, who was the Secretary of the Mandalam Committee, was on inimical terms with the petitioner. He has therefore fabricated Ext.P1 on one of the blank papers signed by the petitioner. Since authenticity of the document Ext.P1 was in dispute, the 1[st] respondent ought to have subjected the same to the examination of a Forensic Expert. The conduct of the 1[st] respondent in examining the document by himself and comparing the same with the admitted writings of the petitioner was uncalled for and unacceptable. Inasmuch as the petitioner has contended that he has not resigned from his party, his contention should have been accepted and a finding that he had not resigned ought to have been entered. This is so in view of the fact that the petitioner has not engaged in any act prejudicial to the interests of the party. Nor has he aligned himself with any other party, to the detriment of his party. He has also not contravened any whip issued by his party. According to the learned Senior Counsel, the petitioner continues to be a member of the party, he continues to take part in the meetings of the party and he plays an active role in the problems of his party. Therefore, it is contended that the order 6 **W.P(c) No.8205 of 2013-A** of the 1[st] respondent, Ext.P4, is unsustainable and liable to be set aside. 6. Senior Counsel Sri Ranjit Thampan, who appears for the 2[nd] respondent on the other hand contends that, on an examination of the resignation letter of the petitioner, Ext.P1, (Ext.P2 in this Writ petition), it was found that the same was written and handed over by the petitioner to PW1, as deposed by him. PW1, who is familiar with the handwriting of the petitioner, has identified his handwriting. Sri K.V.Vinod against whom allegations of personal malice have been raised, was examined as PW2. He has also deposed that Ext.P1 was written by the petitioner. Apart from the above, a comparison of the admitted signature of the petitioner in Ext.P1 as well as the handwriting would convince any person that both the handwriting as well as the signature are by the same person. The peculiar way in which the first alphabet in Malayalam has been written in the body of the letter is similar to the same alphabet that appears in the signature of the petitioner, at the bottom. Since the petitioner has alleged that though the signature is his, the handwriting in Ext.P1 is not his, the burden is upon him who has alleged the special circumstance, to prove the same. Therefore, he ought to **W.P(c) No.8205 of 2013-A** 7 have got the letter examined by a Forensic Expert. The counsel has placed reliance on the decision of this Court reported in **Shajahan v. Chathannoor Grama Panchayat** [2000(2) KLJ 451], to contend that resignation from a party amounted to voluntary giving up of his membership therein. 7. Advocate Murali Purushothaman, who appears for the 1[st] respondent, has made available to me the certified copies of the documents marked in the case as well as the copies of the depositions. According to the learned counsel, The 1[st] respondent Tribunal has considered the matter in the proper perspective and therefore, no interference with the order is called for. 8. Heard. The disputed letter of resignation of the petitioner has been marked as Ext.P1 by the 1[st] respondent. A copy of the said document is produced as Ext.P2 in this Writ Petition. The petitioner does not dispute his signature in Ext.P1. However, according to him, the said document has been fabricated on a signed blank paper that he had handed over to the Mandalam Secretary along with various other such signed papers for being used during the period that he was contesting as a candidate in his election. Regarding the question as to 8 **W.P(c) No.8205 of 2013-A** whether the handwriting in Ext.P1 was that of the petitioner, the case is that, it is not his. The 1[st] respondent had therefore required the petitioner to write out the contents of Ext.P1 when he appeared as a witness before the said authority. Accordingly, he had written the contents of Ext.P1 in the presence of the 1[st] respondent. It has been noted in Ext.P4 order that, he had taken an abnormally long period of time for writing the said specimen for the purpose of comparison with Ext.P1. It has also been noted that, he had carefully written the passages with the object of making its appearance different. Therefore, it has been held that the passages written in Court had been written with the object of making the same appear different. However, the 1[st] respondent found that the mistake that is seen made in Ext.P1 while writing a particular word has been repeated in the specimen writings also. The 1[st] respondent has also relied on the evidence of PW1, who has stated that he was familiar with the handwriting of the petitioner. The evidence of PW1 taken together with the comparison made by the 1[st] respondent of the specimen handwriting with that in Ext.P1 has been relied upon to conclude that Ext.P1 was written by the petitioner. Apart from the above, it is a fact that, the petitioner was a sitting 9 **W.P(c) No.8205 of 2013-A** Member of the Panchayat and the Vice President thereof. There was absolutely no reason for the party to dislodge the petitioner by fabricating Ext.P1, since that would deprive the party of an important post in the Panchayat, namely that of the Vice President. I find no infirmity with the reasoning of the 1[st] respondent. 9. It is also worth noticing that, the petitioner having admitted the signature in Ext.P1 and confined his disputes to the handwriting therein, had the burden to prove the special circumstances under which the signed blank papers were handed over to the Mandalam Secretary. There is no worthwhile evidence on the above aspect. 10. The learned Senior Counsel Sri T.A.Shaji vehemently contended that the 1[st] respondent erred in proceeding to compare the disputed document with the specimen handwriting and arriving at a conclusion that Ext.P1 was genuine. The said task should have been left to an expert. It is therefore contended that, the 1[st] respondent seriously erred in not having the disputed document sent for forensic examination. However, it is worth noticing that, the petitioner had not sought for an examination of the document by a Forensic Expert. An 10 **W.P(c) No.8205 of 2013-A** examination of Ext.P1 document shows that the first letter of the Malayalam alphabet written in the body of the letter as well as the signature of the petitioner as part of his name are written in a peculiar and identical manner. It has also been noticed by the 1[st] respondent that the entire document has been written in the very same ink thereby supporting a conclusion that the same was written at the same time. The above peculiarity in writing the first letter of the Malayalam alphabet, which appears many times in the body of Ext.P1, together with the mistake in writing the Malayalam word in an identically erroneous manner in the specimen handwriting also, sufficiently supports the inference that the handwriting in Ext.P1 is that of the petitioner himself. Since the petitioner has admitted the signature in Ext.P1 and considering the fact that the said document has been produced by the 2[nd] respondent, who is the custodian thereof, the burden was squarely on the petitioner to prove that the handwriting was not his. Therefore, the petitioner ought to have sought for a forensic examination of Ext.P1 if it was felt necessary. For the above reasons, I do not find anything wrong in the omission of the 1[st] respondent to have the document examined by an expert. 11 **W.P(c) No.8205 of 2013-A** 11. A further contention has been raised by the learned Senior Counsel Sri T.A.Shaji that the petitioner not having done any act prejudicial to the interests of the party, not having violated any whip, it cannot be said that he was guilty of voluntarily giving up his membership in his party. The contention cannot be sustained for the reason that Section 3(1) (a) relates to a member of a local authority voluntarily giving up his membership in the political party. Resignation is one of the modes of voluntarily giving up membership in any organization. Therefore, the same applies to political parties also. It has been held by a Division Bench of this Court in **Shajahan v. Chathannoor Grama Panchayat (supra)** that, resignation is only one of the modes by which a person may give up his membership in a political party. But, the expression `voluntarily gives up his membership' is not confined to the said mode alone and would encompass all other methods of giving up membership. Therefore, the said contention also has to fail. 12. It is further worth noticing that the impugned order Ext.P4 is final under the provisions of the Act. The same is only to be subjected to examination under the power of judicial review. Therefore, a re-appraisal of the oral as well as 12 ## **W.P(c) No.8205 of 2013-A** documentary evidence relied upon by the 1[st] respondent is neither called for nor permissible. Therefore, viewed from the above perspective also, Ext.P4 does not call for any interference at the hands of this Court. For the foregoing reasons, this Writ Petition fails and is accordingly dismissed. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/