Pullikkunnil Yusuf v. Alayan Abdul Rasheed and Kerala State Election Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 18360 of 2010(T) -------------------------- PETITIONER(S): --------------- PULLIKUNNIL YUSUF, MEMBER, WARD NO.IV, ALANALLUR GRAMA PANCHAYAT, ALANALLUR.P.O, PALAKKAD DISTRICT. (RESIDING AT PULLIKUNNIL HOUSE, THIRUVIZHAMKUNNU.P.O, ALANALLUR, PALAKKAD DISTRICT BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): --------------- 1. ALAYAN ABDUL RASHEED, S/O. HAMZA ALAYAN, MEMBER WARD NO.IX, ALANALLUR GRAMA PANCHAYAT, ALANALLUR P.O., PALAKKAD DISTRICT. ## 2. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REP.BY ITS SECRETARY. ADV. SRI.M.SREEKUMAR FOR R-1 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX EXT.P1-TRUE COPY OF OP 30/2009 FILED BEFORE R2 EXT.P2-TRUE COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER IN OP 30/2009 EXT.P3-TRUE COPY OF WITNESS LIST SUBMITTED BY THE petitioner EXT.P4-TRUE COPY OF NOTICE DT.11.5.2010 ISSUED BY COMMISSION TO KARIM PADUKUNDIL EXT.P5-TRUE COPY OF LETTER DT.19.5.2010 SUBMITTED BY KARIM PADUKUNDIL TO THE COMMISSION EXT.P6-TRUE COPY OF NOTICE DT.11.5.2010 ISSUED BY THE COMMISSION EXT.P7-TRUE COPY OF TLEGRAN ISSUED BY THE COMMISSION EXT.P8-TRUE COPY OF FAX LETTER DT.27.5.2010 SUBMITTED BY KARIM PADUKUNDIL TO THE COMMISSION EXT.P9-TRUE COPY OF ORDER DATED 3.6.2010 IN OP 30/2009 PASSED BY THE COMMISSION. // TRUE COPY // P.S. TO JUDGE ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 18360 of 2010-T** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25th day of June, 2010.** ## **JUDGMENT** The petitioner who is a member from Ward No.VI of Alanallur Grama Panchayat, is challenging the order by which he was disqualified under the provisions of Kerala Local Authorities (Prohibition of Defection) Act, 1999. In Ext.P9 order, the State Election Commission found that the petitioner has voluntarily given up the membership of the political party which elected him as the member of the Ward and accordingly it was held that he is disqualified. 2. A resume of the facts of the case show the following: The last election to the local authorities was held in September, 2005. The petitioner contested and won the election with the symbol 'Ladder' as a candidate of the Muslim League Kerala State Committee. The first respondent is a member of Ward No.IX of the same Grama Panchayat who had also contested as a candidate of the Muslim League in the same election. 3. O.P.Nos.30/2009, 31/2009 and 32/2009 were filed by the first respondent against the petitioner herein and two others on identical grounds wpc 18360/2010 2 to disqualify them. The narration of facts show that out of the 22 wards in Alanallur Grama Panchayat, the United Democratic Front of which Muslim League is a partner, won 13 seats and the remaining seats were won by the Left Democratic Front alliance. The first respondent was elected as the Vice-President and another member from the Indian National Congress was elected as the President of the Panchayat pursuant to an understanding to exchange the posts of President and Vice-President after completion of 2 ½ years in office. On the expiry of the period of 2 ½ years, on resignation of the President and Vice-President an election was held on 6.5.2008. In the said election the first respondent became the President and another member Shri Puthankottu Ummer of the Congress became the Vice-President, both representing the United Democratic Front. In the sworn declaration submitted before the Secretary of the Panchayat the petitioner had also affirmed that he is a candidate supported by Muslim League and is having affiliation with the elected Muslim League members and U.D.F. 4. A notice of no confidence was moved by the Left Democratic Front against the first respondent and the Vice-President, which was adopted. The next election to the post of President was held on 7.4.2009. The first respondent and Shri Ummer were the candidates chosen by the wpc 18360/2010 3 U.D.F. to contest to the post of President and Vice-President and a whip was issued to all the members by the Chief Whip of the parliamentary party. Violating the whip and the directions of the Muslim League, the petitioner herein contested as President with the support of the L.D.F. and another independent candidate supported by the L.D.F. was elected as the VicePresident. Thus, it is alleged that the petitioner herein has incurred the disqualification, as he has acted against the whip issued by the Muslim League and has abandoned the Muslim League by joining with the L.D.F. and contested against the official candidates of the Muslim League. 5. The Election Commission, after taking evidence in the matter, found that as far as the issuance of whip is concerned, no valid whip was issued and served. Therefore, the prayer to disqualify the members on that ground was not granted. The other two members are independent members also. The question whether all the three have voluntarily given up the membership of the political party, was considered as issue No.2. As far as the two other members, viz. Shri C. Krishna Das and Shri K. Sethumadhavan, it was held that they were not set up by the Muslim League in the election and therefore they stand on a different footing. Therefore, the question was examined whether the petitioner herein is liable to be disqualified for voluntarily giving up the membership of the wpc 18360/2010 4 parliamentary party. It was held that as he stood against the party stand and contested the election with the support of the L.D.F. as President, he will be deemed to have voluntarily given up the membership of the party and has incurred disqualification. 6. Heard learned counsel for the petitioner, learned counsel for the first respondent and learned Standing Counsel for the Election Commission. 7. Mainly it is contended that the petitioner herein was actually denied the opportunity to examine his witnesses by the State Election Commission, in spite of issuance of summons to them. Two witnesses were sought to be examined to prove that the petitioner was the official candidate of the Muslim League and he has never given up the membership of the party. Thus, it is submitted that the matter may have to go back to the Commission for examining those witnesses. It was also contended that the allegation regarding voluntarily giving up of the membership of the party and the findings thereon by the Commission, cannot be supported in law. The first respondent was not the official candidate of the Muslim League in the election to the post of President, whereas the petitioner was chosen as the official candidate. But violating this, the first respondent contested the election as President, which according to the petitioner, is against the decision of the party itself. After his removal by the no-confidence motion, wpc 18360/2010 5 the petitioner contested as President in terms of the directions of the party. It is therefore contended that actually the petitioner had not given up his membership in the political party, viz. Muslim League. 8. These contentions are opposed by the learned counsel for the first respondent who submitted that the first respondent was the candidate chosen by the Muslim League to contest as the President and he was supported by the UDF members and the petitioner alone was defected and as he has accepted the votes of the L.D.F. members and the candidature on behalf of them and voted against the official candidate of the Muslim League, they are sufficient to infer that he has voluntarily given up the membership of the party. Reliance is placed on the decisions of this Court in **Faisal v. Abdulla Kunhi** (2008 (3) KLT 534) and **Dharma Mani v. Parassala Block Panchayat** (2009 (3) KLT 29). 9. It is true that the question regarding the violation of whip was found against the first respondent by the State Election Commission. But that will not help the petitioner in the light of the fact that as held by this Court in **Dharma Mani's case** (2009 (3) KLT 29), disqualification for voluntarily giving up the membership of one's party is not dependent on violation of the whip. Therefore, the question whether the petitioner had wpc 18360/2010 6 voluntarily given up the membership of the party, has to be examined separately and independent of the finding regarding violation of the whip. 10. Both sides have examined different witnesses in support of their case. P.Ws. 1 to 3 were examined by the first respondent and RWs.1 to 6 have been examined on the side of the petitioner herein. The findings rendered by the Commission in para 5 on this issue are based on the following facts: The petitioner herein had voted in favour of the U.D.F. candidates in the presidential elections held in October, 2005. In the second election held on 6.5.2008 also, the petitioner along with the Muslim League members had voted in favour of the first respondent. No evidence has been produced to show that the petitioner herein was nominated by the party to contest as President either in 2008 or in 2009. The other members of the Muslim League and the Congress have taken a consistent stand in the elections held in 2005, 2008 and 2009. The stand taken with regard to the no confidence motion scheduled on 17.3.2009, was also consistent. There is no evidence to show that the petitioner herein was chosen as the candidate of the Muslim League to contest as President. His candidature as a President was seconded by a member belonging to CPI(M) in the presidential election held on 7.4.2009 and he got 12 votes against 10 votes bagged by the first respondent. These include, 9 votes from L.D.F. wpc 18360/2010 7 members and 2 by independent members. The voting pattern was clearly divided between the two fronts. It is evident that the petitioner stood against the party stand of the Muslim League. Accordingly, it was held that he acted against the party line and has contested and won the election with the support of the L.D.F., which is sufficient to hold that he has voluntarily given up the membership of the political party. 11. In this context, the plea raised by the petitioner to challenge these findings, is the following: According to him, actually there was a decision to remove the first respondent as President after the election held in 2008, and his term was limited to six months alone. That is why in the meeting held for considering the no confidence motion, the members of the Muslim League and the Congress did not vote and they boycotted it. The actual decision was to sponsor the petitioner as the candidate in 2008 itself, to contest as President, but violating this understanding the first respondent again contested as President on both occasions. Therefore, according to the petitioner, he never acted against the party line and has not defied the party's directions also. These aspects, he wanted to prove further by examining two witnesses who were having the minutes showing the decision taken by the party. 12. The said contention has to be tested in the light of the well settled wpc 18360/2010 8 principles laid down by this Court in similar circumstances. What amounts to voluntarily giving up the membership of the party, has been considered by various decisions of this Court. 13. In **Shajahan v. Chathannoor Grama Panchayat and others** (2000 (2) KLJ 451), the member concerned voted against the political party to which he belonged and the Division Bench upheld the decision of the Election Commission that he had voluntarily given up his membership of the party to which he belonged. It was further held therein that even in the absence of a formal resignation an inference can be drawn from the conduct of the member that he has voluntarily given up the membership of the political party to which he belongs. 14. In **Faisal's case** (2008 (3) KLT 534), the member concerned accepted the nomination as President by the members of the rival front. Therein, it was held in paragraphs 11 and 12 thus: “A person may voluntarily give up the membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. By accepting the nomination by members of the rival coalition, he had voluntarily abandoned wpc 18360/2010 9 membership of his political party. Since the words 'voluntarily giving up membership of his political party' is not to be equated with ceasing to be a member of his party by resignation, from the conduct of that petitioner if an inference can be drawn that he has voluntarily given up his membership of his political party, he is liable to be disqualified. It is evident that the petitioner had acted against the directions of his party leadership and that he was arraying himself with the rival coalition. These facts certainly justify the inference that the petitioner had voluntarily given up his membership in Indian Union Muslim League, although he had not tendered his resignation.” Therefore, the conduct of the person in accepting the nomination as President by the members of the rival front, was treated as sufficient to invite a disqualification. The said legal position was reiterated in **Dharma** **Mani's case** (2009 (3) KLT 29) also. Therein, the members of one political party aligned with the opposite front for moving the no confidence motion against the office bearers who belonged to their party. It was found by this Court that the same will be sufficient to attract the disqualification. 15. Another important decisions is one by a Division Bench of this Court in **Varghese v. Kerala State Election Commission** (2009 (3) KLT 1). After elaborately considering the decisions of this Court and Apex Court, it was held that if a member or a group of the elected members of wpc 18360/2010 10 the political party takes a different stand from that of the political party as such, and acts against the policies of the political party in which they are members, it is nothing but disloyalty. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. The Bench was also of the view that in the absence of a specific whip for conscience vote, an elected member is liable to cast only a conscious vote. It was held thus, after analysing various aspects: “The situation would be different if the political party itself, taking note of such strange realities, permits the elected members to cast conscience vote. In such situations the whip itself is for decision by the individual concerned according to his conscience. The Oxford dictionary defines conscience to mean “the part of your mind that tells you whether your actions are right or wrong.” In the absence of a specific whip for conscience 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 S.3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on disqualification on the ground of defection on account of voluntarily giving up membership in the political party. Conscience vote is hence a matter of express whip in the absence of which an elected member is bound by the policies of his political party and he can cast only a conscious vote. That is nothing but an expected wpc 18360/2010 11 expression of his obligation to the political party and responsiveness to the people, by doing things carefully and correctly and if not the conduct would amount to betrayal of the political conscience which is impermissible under law.” The above principles will squarely apply to the facts of this case also. This is a case where the petitioner contested and won against the candidate of the political party to which he belonged, with the support of the opposite political front, viz. Left Democratic Front. Only the members of the said front nominated and supported him, which implies that he has openly aligned with the said members and has accepted their nomination to contest as President. Therefore, the conduct of the petitioner in aligning with the opposite front, is plain and clear. This conduct alone will justify the conclusion that he has voluntarily given up the membership of the political party, viz. Muslim League. As held by the Division Bench in **Varghese's case** (2009 (3) KLT 1), there was no whip to have a conscience vote also. It is therefore plain and clear that he has acted against the wishes of the party and was disloyal to the party. Hence, the same justifies the disqualification. 16. The further argument raised by the learned counsel for the petitioner is the denial of opportunity to examine his remaining witnesses. wpc 18360/2010 12 It is argued that actually if the two witnesses cited by him were examined, it would have been proved that there was a decision by the political party to which he belonged, to nominate him as President for the election held in 2008 and which applies to the election held on 7.4.2009. It is submitted that by disallowing such an opportunity, great prejudice has been caused to the petitioner. 17. Herein, one aspect is significant. The written statement filed by the petitioner is produced as Ext.P2. After narrating the details regarding the arrangement between the Muslim League and the Congress to alter the post of President and Vice-President after completion of 2 ½ years, it is stated in para 9 that there was a decision to remove the first respondent as VicePresident and to nominate the petitioner herein as President of the Panchayat on completion of 2 ½ years term. Evidently, he has not referred to the details of such a meeting and, the date on which it was taken, etc. Such details are absent in para 9. Therefore, no credence can be given to the said contention. Again, in para 13, it is mentioned that there was a decision by the party to remove the first respondent from the post of President, but no details with regard to the said decision has been stated therein. In para 15 also, it is mentioned that in respect of the election held on 7.4.2009 also, the petitioner had submitted his nomination in terms of the wpc 18360/2010 13 earlier decisions of the party. Herein also, the details with respect to the forum/committee which took the said decision, the dates, etc. have not been mentioned. On reading through the oral evidence of the petitioner also who was examined as RW.1, such details are not there. If, as a matter of fact, such a decision was there, the details of them would have been put to the first respondent when he was examined as P.W.1 in the cross examination. No attempt was made to elicit the same and no suggestion was made with regard to the specific dates and the meetings of the committee wherein such decision was taken. Therefore, to appreciate the argument of the learned counsel for the petitioner that the petitioner was denied an opportunity to call for the minutes of the meetings, the same is significant. 18. Herein, learned Standing Counsel for the Commission submitted that all opportunities were given to the petitioner to adduce evidence. It is pointed out that the additional witness schedule was given only on 10.5.2009, after examination of the other witnesses. It was ordered by the Commission in its sitting on 11.5.2009 that steps will be taken on that day itself for examination of all the witnesses. It is therefore submitted that it was only an attempt on the part of the petitioner to delay the proceedings. Going by the proceedings sheet, the evidence was over on 18.5.2009 and the case was posted for arguments. It does not appear that there was a wpc 18360/2010 14 petition for reopening the evidence also. 19. In the light of the above scenario, the question whether the petitioner was denied an effective opportunity, has to be appreciated. It is not a case where the petitioner was not given an effective opportunity either, to produce witnesses and to examine them. Clearly, only during the last moments of the trial the petitioner produced the additional witness schedule. 20. Going by the dictum laid down in various decisions the conduct of the petitioner in contesting as a President after aligning himself with the rival political front, viz. L.D.F. and with their support, winning the election against the candidate of the Muslim League to which party he belonged, itself is sufficient to disqualify him. When the said conduct is relevant, it is beyond the point to contend that there was a decision by his own party long back to make him as a candidate after the 2 ½ period. Evidently, the first respondent alone was proposed by the U.D.F. as a candidate for the election of the President. Therefore, there is no point in submitting at this late hour that the petitioner was sought to be made as a candidate. What is important to consider the question of disqualification is the events that took place in the meeting held on 7.4.2009. He was never nominated and proposed as the candidate of the U.D.F. to contest as President in the said wpc 18360/2010 15 meeting. Since the same is absent, the argument that there was a previous decision long back to put him as President, cannot hold good. It is only a belated attempt made by the petitioner to wriggle out of the proceedings for disqualification. Therefore, on any account, it could not have improved his position, as it is proved beyond doubt that he had aligned himself with the L.D.F. and stood as a candidate for the post of President with their support. Since that conduct alone is sufficient, going by the decision of this Court in **Faisal's case** (2008 (3) KLT 534), I am satisfied that the order passed by the Election Commission does not call for any interference. The writ petition is thus dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**