K.K. Ramesh Babu v. Kerala State Election Commission and K.B. Shafeeq

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **WP(C).No.29047 OF 2019(E)** ## **PETITIONER:** **K.K.RAMESH BABU, S/O. KRISHNAN KUTTY, KUTTIKATTIL HOUSE, EDAVILANGU P.O, THRISSUR DISTRICT.** **BY ADV. SRI.SUNIL JACOB JOSE** ## **RESPONDENTS:** **1 THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, O/O STATE ELECTION COMMISSION, MUSEUM, THIRUVANANTHAPURAM - 695 033. 2 K.B SHAFEEK, S/O. BEERU, KATTUPARAMBIL HOUSE, KARAKATHIYALAM P.O, THRISSUR DISTRICT-680 671. BY ADVS. SRI.K.A.NOUSHAD SRI.MURALI PURUSHOTHAMAN, SC SRI.JESTIN MATHEW, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.29047 OF 2019(E)** **-2-** ## **JUDGMENT** **Dated this the 12th day of November 2020** The petitioner approached this Court challenging Ext.P1 order dated 04.10.2019 of Kerala State Election Commission invoking article 226 of Constitution of India. 2. The petitioner was elected as a member of Edavilangu Grama Panchayat in the election held in November 2015. He contested and elected as the candidate of the Communist Party of India [CPI(M)]. CPI(M) was a part of coalition in the Left Democratic Front (LDF). Communist Party of India (CPI) is the other constituent in LDF. There was an understanding between CPI(M) and CPI to share the post of president and vice president. When the first term was over, CPI sponsored Smt. Mini Thankappan as the candidate for the post of Vice President in the election. The election was scheduled on 13.03.2018. It was alleged that a whip was served to the petitioner directing him to vote infavour of the LDF candidate Smt. Mini Thankappan in the Vice President election. The petitioner denied the service of whip. Anyway, the petitioner **WP(C).No.29047 OF 2019(E)** **-3-** voted in favour of Smt. Mini Thankappan, however, that vote was considered as invalid as the petitioner failed to write his name and to put his signature on the reverse side of the ballot paper. 3. The Election Commission found that the whip was served. However, there is no finding that the whip was served in a manner which indicated under Section 3(2) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short 'the Act'). Section 3(2) contemplates service of the whip not only on the member but also on the Secretary of the Local Self Government Institution concerned. When there is a denial of the whip, it is incumbent on the petitioner to prove service in a manner which indicated under Section 3 of the Act. The Election Commission had not relied on any evidence to show the service of the whip on the Secretary of the Local Self Government Institution. In that view of the matter I have to hold that there was no valid service of whip. 4. If a member defy the whip, whatever the reason he may have that cannot be condoned by the Election Commission, **WP(C).No.29047 OF 2019(E)** **-4-** nor the Election Commission competent to adjudicate the validity of the non-compliance of the whip. Therefore, Once it is established that the whip was defied, that would attract the second limb of Section 3(1)(a) to disqualify on the ground of defection. This second limb refers to disqualification on the ground related to defying the direction issued by the party for voting in a meeting referred therein. However, even if there was no valid service of whip, if the member is aware of any direction of the whip, the disqualification would be attracted if there was a defying or disobeying of any direction issued by the party as referable under the first limb of Section 3(1)(a) of the Act. The first limb of Section 3(1)(a) relates to voluntarily giving up of membership. 5. In the light of the fact that there is no valid service of whip as referable under Section 3(2) of the Act only question that has to be considered by this court whether there was a willful disobedience on the part of the petitioner in following the directions of the political party. 6. It cannot be said that the petitioner was not aware **WP(C).No.29047 OF 2019(E)** **-5-** of the candidature of Smt. Mini Thankappan, sponsored by CPI. It cannot also be said that the petitioner's party CPI(M) had not supported the candidate of CPI. The petitioner was very well aware of the candidature of Smt. Mini Thankappan. The petitioner also cast vote in favour of Smt. Mini Thankappan. The vote rendered was invalid for the reasons noted as above. The petitioner has explanation for the same. If the explanation is valid, a singular act on the part of a member of the party cannot be treated as a ground for attracting disqualification under Section 3(1)(a) of the Act. The explanation was there, it was an omission as he was under stress due to ailment of his mother. In the given circumstances, if any valid reasons have been put forwarded, that cannot be put against the petitioner to hold that he has voluntarily given membership of the party. Mere failure or omission on the part of a member to enter his name and signature on the reverse side of the ballot paper and it cannot be treated as a ground for disqualification under Section 3(1)(a) of the Act. However, in this case it is to be noted, it is specifically pleaded in paragraph 28 of the petition as **WP(C).No.29047 OF 2019(E)** **-6-** ## follows: _28. It may also be noted that on earlier occasions also he made his vote invalid. It is in evidence that election to the post of President was held on 14.02.2018 and in that election also he made his vote invalid by not writing his name on the ballot paper though he cast his vote infavour of the nominee of his party. The present act of the respondent is to be viewed in that background also. His non writing of the name on the ballot paper is not so innocent as projected by the respondent. As stated above the Vice President election was held in two phases. It is admitted by RW1 that on both occasions his vote was declared invalid as he did not write his name on the ballot paper as required by law. From the evidence and circumstances of the case it cannot be said that it is not deliberate and that it is only a mistake. Further, if the above contention of the respondent is accepted the defecting members can adopt this method in all the cases of voting and defeat the provisions of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act. That should not be allowed to happen._ In the counter affidavit this fact was not denied. On the other hand, the petitioner admitted his omission to write the name on the ballot paper in respect of the election for the president. According to him it was an omission and a mistake. 7. Repeated mistakes and omission on the part of the petitioner therefore, will have to be viewed seriously. If a person committed repeated mistakes and omission that can only be considered as a willful disobedience of the directions of the political party. The similar question in fact, considered by this Court in **[2019 (2) KHC 757] A.G. Mathew v. Kerala State** **WP(C).No.29047 OF 2019(E)** **-7-** **Election Commission and Others.** This Court also noting the similar act of a member and found that any such willful act will also amounts to disobedience of the party directions, attracting the ground of disqualification or voluntarily giving up of the membership. 8. As already noted, there are differences between the first limb and the second limb of provisions under Section 3 (1) (a). If there is alleged violation of the second limb, it is enough to prove that the member defied the whip issued. If there is any ground for disqualification under the first limb of Section 3(1)(a), it must be showed that it was a willful disobedience of the directions of the political party. The case against the petitioner was made out for proving that on an earlier occasion, the petitioner also did the similar act, that means the petitioner had defied the party directives to attract the ground for disqualification under the first limb of Section 3(1)(a) of the Act. Though, finding made by the Election Commission for attracting the disqualification under the ground of second limb will have to be set aside for the reason that there was no proof **WP(C).No.29047 OF 2019(E)** **-8-** to service of whip on the Secretary of Local Self Government Institution, nevertheless, the finding would attract the disqualification under the ground of first limb of Section 3(1)(a) of the Act. Accordingly, I find no reason to interfere with the impugned order. This writ petition is liable to be dismissed. Accordingly, it is dismissed. No costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** akv **WP(C).No.29047 OF 2019(E)** **-9-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE ORDER DATED 4/10/19 OF THE 1ST RESPONDENT IN OP NO. 13/18** **EXHIBIT P2 PHOTOCOPY OF O.P NO. 13/18 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT** **EXHIBIT P3 PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE