N. M. Vijayan v. Kerala State Election Commission and T. L. Sabu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940 WP(C).No. 8528 of 2018** ## **PETITIONER/S:** **N.M.VIJAYAN, AGED 72 YEARS, S/O LATE N.M. KRISHNAN NAIR, MANICHIRAKKAL HOUSE, POOMALA P.O., SULTHANBATHERY, WAYANAD DISTRICT:673592. BY ADV. SRI. GEORGE POONTHOTTAM** ## **RESPONDENT/S:** **1 THE KERALA STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANATHAPURAM-695033, REPRESENTED BY THE STATE ELECTION COMMISSIONER. 2 T.L.SABU, S/O LUKA, THURUTHIYIL HOUSE, MULLUANKUNNU,SULTHAN BATHERY P.O., WAYANAD DISTRICT-673592.** **R1 BY SRI. MURALI PURUSHOTHAMAN, SC R2 BY ADV. SRI.MATHEW KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.08.2018, THE COURT ON 20.08.2018 DELIVERED THE FOLLOWING:** **WP(C).No.8528 of 2018** **2** ## **JUDGEMENT** This writ petition is filed by the petitioner seeking to quash Ext.P3 order of the 1[st] respondent, Kerala State Election Commission, dismissing the petition filed by the petitioner herein, refusing to disqualify the 2[nd] respondent, allegedly for the defection committed under Sec.3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for brevity, 'Act, 1999'). Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner and the 2[nd] respondent are elected councillors of Sulthan Bathery Municipality in the election held during November, 2015. Petitioner was elected as the candidate of Indian National Congress. The 2[nd] respondent was elected from Ward No.23 as a candidate of Kerala Congress (M), a constituent of Congress led United Democratic Front (UDF). There were three candidates in Ward No.23, including the 2[nd] respondent. The candidates of both LDF and UDF secured 243 votes each, and in the draw conducted, 2[nd] respondent was declared elected. In the election, both UDF and LDF secured 17 seats each out of the total 35 seats. The remaining one seat was won by the BJP. After the **WP(C).No.8528 of 2018** **3** election, a meeting of all elected Councillors of the UDF was conducted on 17.11.2015, and in the meeting, all UDF Councillors, except the 2[nd] respondent attended, and the petitioner was unanimously elected as their whip. Sri. P.P. Ayoob and Smt. Radha Raveendran were decided to be the candidates to the post of Chairman and Vice Chairperson. A written direction was given to all the UDF Councillors, directing them to vote in favour of the above two candidates in the election proposed to be held on 18.11.2015. However, the 2[nd] respondent refused to accept the whip, and hence it was affixed on the front door of the 2[nd] respondent's house. 3. In the meeting held on 18.11.2015, 2[nd] respondent cast his vote in favour of the candidate of LDF, one C.K. Sahadevan, and accordingly, he got 18 votes and he was declared elected as the Chairman. Correspondingly, the UDF candidate got only 16 votes. In the election to the post of Vice Chairperson also, 2[nd] respondent adopted the same stand. Therefore, according to the petitioner, it was defying and disobeying the direction of the UDF, 2[nd] respondent supported the candidate of the LDF, and thereby, the 2[nd] respondent committed defection, and by his own conduct, 2[nd] respondent voluntarily gave up his membership in his **WP(C).No.8528 of 2018** **4** party Kerala Congress (M), and withdrew from the UDF, and thus 2[nd] respondent incurred disqualification as provided under Sec.3(1)(a) of Act, 1999. 4. The 2[nd] respondent has filed a counter affidavit, refuting the allegations and claims and demands raised by the petitioner, and in accordance with the contentions raised before the 1[st] respondent. According to the 2[nd] respondent, he contested the election to Sulthan Bathery Municipality not as part of any coalition, in Ward No.23. The UDF supported the independent candidate Sri. Prem Sai and not the 2[nd] respondent. The declaration given by the 2[nd] respondent and the register showing the party affiliation of the elected members would show that the 2[nd] respondent contested and was elected as the candidate of Kerala Congress (M) and not of UDF. The District President of the Kerala Congress (M) issued direction to the 2[nd] respondent to vote in favour of C.K. Sahadevan, an LDF candidate to the post of Chairman and Jisha Shaji, LDF candidate for the post of Vice Chairperson. Therefore, the 2[nd] respondent never violated the direction of his party and he did not do any act of defection. Therefore, according to the 2[nd] respondent, the allegations made by the petitioner against the 2[nd] respondent in the election **WP(C).No.8528 of 2018** **5** petition and in the writ petition filed before this Court that, a whip was given by the UDF to the 2[nd] respondent cannot be sustained under law and facts. 5. I have heard Sri. George Poonthottam, learned counsel for the petitioner, Sri. Murali Purushothaman, learned Standing Counsel appearing for the Kerala State Election Commission and Sri. Mathew Kuriakose, learned counsel appearing for the 2[nd] respondent. Perused the documents on record and the pleadings put forth by the respective parties. 6. The question remains to be considered is, whether any manner of interference is warranted to Ext.P3 order passed by the 1[st] respondent. PW1 to PW6 were examined on the side of the petitioner, and RW1 and RW2 were examined on the side of the 2[nd] respondent. Exhibits A1 to A30, B1 to B6 and X1 and X2 documents were marked. 7. The 1[st] respondent after elaborately considering the evidence, attendant facts and circumstances, held that, there is no defection on the part of the 2[nd] respondent so as to disqualify him. It is clearly found by the 1[st] respondent that, whip if any, issued by the petitioner, even if he is the whip of UDF, as claimed by him, is not binding on the 2[nd] respondent. The District President of the 2[nd] respondent's party, Kerala Congress **WP(C).No.8528 of 2018** **6** (M) issued Exts.B5 and B6 whips and the 2[nd] respondent acted in accordance with the whip issued by the Kerala Congress party. Therefore, it was held that, there is no violation of whip to attract the 2[nd] limb of Sec.3(1)(a) of the Act. It was further held that, the principles of law laid down by this Court in W.P.(C) No.20257 of 2015 is not applicable to the facts of the case, and in that judgment, the District President of the Socialist Janata Dal and the State President issued two conflicting directions, i.e., one to support the no confidence motion and other to defeat the motion. There, it was found that the whip issued by the District President of the Socialist Janata Dal was not proper as he was not the competent person to issue the whip, in accordance with the regulations prevailing in the said party. However, in the case at hand, the District President of the Kerala Congress (M) is the competent person to issue whip and there is no dispute over that. 8. It is also found that, there is nothing in evidence to show that 2[nd] respondent has done any act amounting to voluntary abandonment of his membership from his party in accordance with the first limb of Sec.3(1) (a). It was evaluated by the 1[st] respondent that, the UDF committee allotted Ward No.23 to Kerala Congress (M). **WP(C).No.8528 of 2018** **7** However, the Kerala Congress party, to which the 2[nd] respondent is belonging, fielded him as the candidate in Ward No.23. True, it has the support of UDF. But, that does not mean that the respondent is not bound by the decision of his party. It was also held that the 2[nd] respondent is not an independent candidate elected with the support of UDF. Since he is a nominee of a political party, he is certainly bound to obey the direction of his party and he is not bound by the direction of the UDF whip, if any, issued. That apart, it was held that, 2[nd] respondent did not do any act against the interest of his party amounting to voluntarily giving up of his membership in the party. So, the first limb of Sec.3(1) (a) is not attracted in this case. 9. Learned counsel for the petitioner has invited my attention to the judgment of this Court in ' _**Rama**_ _**Bhaskaran v. Kerala State Election Commission and others**_ ' [2018 (1) KLT 1047] and contended that, the issue was considered elaborately by a learned Single Judge and has come to a conclusion that, in view of the support extended by UDF, the independent candidate was liable to comply with the whip issued by the UDF. However, on a reading of the afore-quoted judgment, it is evident that an independent candidate was supported by the UDF and **WP(C).No.8528 of 2018** **8** after the election, whip was given to the independent candidate to exercise his vote in favour of the candidate fielded by the UDF. However, the whip was violated, and on that account only, it was held by this Court that the independent candidate has defected, and approved the order passed by the Election Commission accordingly. It was also found by this Court, in the case of an independent member belonging to any coalition, a disqualification is attracted if the independent member withdraws from such coalition or joins any political party or any other coalition, or if such a member, contrary to any direction in writing issued by a person or authority authorized by the coalition in its behalf in the manner prescribed, votes or abstains from voting or if the independent member, who does not belong to any coalition joins any political party or coalition, a similar disqualification is not attracted under Sec.3(1) (a), if a member of a political party acts contrary to any direction in writing issued on behalf of a coalition. 10. Therefore, it was further held that, when a member of a political party, which forms part of a coalition, acts contrary to the interest of the coalition (as against the interest of his/her own political party), a disqualification is not attracted under Sec.3 of the **WP(C).No.8528 of 2018** **9** Act. The issue then arises as to whether the conduct of the member of the political party, in acting against the interests of the coalition, of which his political party was an integral component, would tantamount to his voluntarily giving up membership of his political party. Thereupon, it is held that, the proposition of law laid down in the unreported judgment dated 08.02.2006 in W.A.No.2351 of 2005, suggest that a person, who is a member of a political party, which in turn is part of a coalition, who acts against interests of the coalition, or who has won an election with the support of members of a rival coalition would be seen as acting against the interest of his own political party, which has allied itself with a coalition. 11. However, learned counsel appearing for the respondents has invited my attention to paragraph 6 of the said judgment, and submitted that, a political party goes before the electorate with a particular programme and it fields candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. Therefore, the political propriety and morality demand that if such a person after the election, changes his affiliation and **WP(C).No.8528 of 2018** **10** leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the Legislature and go back before the electorate, and the same yardstick is applied to a person, who is elected as an independent candidate and wishes to join a political party after the election. Therefore, according to the respondents, the consideration extended by the learned Single Judge in the afore-quoted judgments, and facts and situations are entirely different from the case at hand. 12. I have evaluated the rival submissions made across the Bar and the _pros and cons_ involved in the factual situations based on the evidence tendered by the respective parties and considered by the 1[st] respondent in the election petition. The fact discussion made above would make it clear that, 2[nd] respondent was fielded as a candidate by the Kerala Congress (M). From Exts.B1 and B6 documents, it is evident that, the District President of the Kerala Congress party has issued whip to the 2[nd] respondent to vote in favour of the candidates fielded by LDF to the post of Chairman and Vice Chairperson. 13. On a reading of Sec.3(1)(a) of Act, 1999, it is quite clear that, what is intended under law is the whip issued by the political party, and if any such whip is **WP(C).No.8528 of 2018** **11** issued, then it is binding on the member of that political party irrespective of any whip issued by the authorized person of the coalition. Section 3(1) of Act, 1999, read thus: _“_ _**3. Disqualification on ground of Defection** .-(1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act,-_ _(a) if a member of 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 authorised by it in this behalf in the manner prescribed, votes or abstains from voting,-_ _(i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or_ _(ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee; or the Chairman of the Standing Committee; or_ _in a voting on a no-confidence motion against any one of them except a member of a Standing Committee;_ _(b) if an independent member belong to any coalition withdraws from such coalition or joins any political party or any other coalition, or if such a member, contrary to any direction in writing issued by a person or authority authorised by the coalition in its behalf in the manner prescribed, votes or abstains from voting,-_ _(i) in a meeting of a Municipality, in an election of its President, Vice President, a member of Standing Committee or the Chairman of the Standing Committee; or_ **WP(C).No.8528 of 2018** **12** _(ii) in a meeting of a Panchayat in an election of its President/Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or in a voting on a no confidence motion against any one of them except a member of a Standing Committee;_ _(c) if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority._ _**Explanation** .-- For the purpose of this section an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was set up as a candidate for the election.”_ 14. On an appreciation of both limbs of Sec.3(1)(a), it is explicit that, both limbs will not attract in this case, as is alleged by the petitioner, so as to disqualify the 2[nd] respondent. Moreover, the 1[st] respondent has appreciated the evidence tendered by both parties and also the documentary evidence marked through the respective parties, and other witnesses and it was clearly found that whip was given by Kerala Congress (M) to the 2[nd] respondent to vote in favour of LDF candidates. On a perusal and appreciation of the findings rendered by the 1[st] respondent, I am of the considered opinion that, 1[st] respondent has considered the subject issue in accordance with the provisions of law, appreciating the oral as well as documentary evidence, and has arrived at the correct conclusions. I could not find any illegality, arbitrariness or any other legal infirmity **WP(C).No.8528 of 2018 13** justifying interference in the order passed by the 1[st] respondent. Resultantly, writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **Judge** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.P.NO.71/2015 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT (WITHOUT ANNEXURES). EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT HEREIN IN O.P.NO.71/2015 BEFORE THE 1ST RESPONDENT (WITHOUT ANNEXURES).** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20.12.2017 IN O.P.NO.71/2015 PASSED BY THE 1ST RESPONDENT.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-