Ramaswamy, Indira, R.V. Palani, Vimal Essakkimuthu, Balan Mackali v. Kamraj Ponnuswamy and Kerala State Election Commissioner

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934 WP(C).No. 25140 of 2011 (N) --------------------------- PETITIONER(S): ------------- 1. RAMASWAMY, MEMBER, WARD NO.2, DEVIKULAM GRAMA PANCHAYATH, IDUKKI DISTRICT. 2. INDIRA, MEMBER, WARD NO. 15, DEVIKULAM GRAMA PANCHAYATH, IDUKKI DISTRICT. 3. R.V. PALANI, MEMBER, WARD NO.6, DEVIKULAM GRAMA PANCHAYATH, IDUKKI DISTRICT. 4. VIMAL ESSAKKIMUTHU, MEMBER, WARD NO.6, DEVIKULAM GRAMA PANCHAYATH, IDUKKI DISTRICT. 5. BALAN MACKALI, TOP DIVION, MADUPETTY ESTATE, MADUPPETTY.P.O DEVIKULAM GRAMA PANCHAYATH, IDUKKI DISTRICT. BY ADVS.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): -------------- 1. KAMARAJ PONNUSWAMY, CHUIVARIA ESTATE, NORTH DIVISION, YELLAPETTY P.O. MUNNAR, IDUKKI DISTRICT-685612. 2. KERALA STATE ELECTION COMMISSIONER, THIRUVANANTHAPURAM - 695 001. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM BY ADV. SRI.E.M.SUNIL KUMAR BY ADV. SRI.T.R.S.KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2505-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25140 of 2011 (N) PETITIONER(S) EXHIBITS EXHIBIT-P1-TRUE COPY OF THE ELECTION PETITION NO.64/2009 FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT-P2- TRUE COPY OF THE ELECTION PETITION NO.65/2009 FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT-P3-TRUE COPY OF THE ELECTION PETITION NO.66/2009 FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT-P4-TRUE COPY OF THE ELECTION PETITION NO.67/2009 FILED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT-P5-TRUE COPY OF THE ELECTION PETITION NO.68/2009 FILED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT-P6-TRUE COPY OF THE COMMON ORDER DATED 29/08/2009 PASSED BY THE 2ND RESPONDENT ALLOWING THE PETITION TO CONDONE THE DELAY FILED BY THE IST RESPONDENT. - EXHIBIT-P7- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P. NO. 64/2009. - EXHIBIT-P8-TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P. NO. 65/2009. - EXHIBIT-P9-TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P. NO. 67/2009. - EXHIBIT-P10-TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P. NO. 68/2009. - EXHIBIT-P11-TRUE COPY OF THE NOT PRESSED MEMO FILED BY THE ELECTION PETITIONER AND SIGNED BY HIM AND HIS COUNSEL - EXHIBIT-P12-TRUE COPY OF THE ORDER DATED 09/08/2011 PASSED BY THE ELECTION COMMISSIONER ALLOWING THE ELECTION PETITION. RESPONDENTS' EXHIBITS : NIL ## **P.N.RAVINDRAN, J.** ## **-------------------------------------W.P.(C)No. 25140 of 2011 --------------------------------------Dated this the 25[th] day of May, 2012** ## **J U D G M E N T** Ext.P12 order passed by the Kerala State Election Commission on 9.8.2009 disqualifying the petitioners under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, herein after referred to as “the Act” for short, is under challenge in this writ petition. The brief facts of the case are as follows: 2. The petitioners and the first respondent were elected from different wards of Devikulam Grama Panchayath in the elections held in the year 2005. They along with three others contested as official candidates of the Communist Party of India (CPI), a political party registered under section 29 (A) of the Representation of the People Act, 1951. The office of the President of Devikulam Grama Panchayath fell vacant sometime in the year 2008. Thereupon, a meeting of the members of the Panchayath was held on 29.1.2009 to elect a new President. The first respondent herein was the official candidate of the Communist Party of India. However the fifth petitioner was elected with the support of petitioners 1 to 4. The first respondent thereupon filed O.P.Nos.64, 65, 66, 67 and 68 of 2009 before the Kerala State Election Commission under section 4 of the Act, for an order WP(C)No. 25140 of 2011 -2- disqualifying the petitioners on the allegation that they have violated the whip issued by the District Secretary of the Communist Party of India on 28.1.2009. The relevant portion of Ext.P1 petition in O.P.No.64 of 2009 is extracted below: _5. The respondent, and other members of the parliamentary party as above stated, received the whip on 28.1.09. But the respondent violated the whip and he caste his vote in favour of Sri.Balan Mackali, member of ward no.16, for the post of president ship, whose name is proposed by Sri.Ramaswamy and seconded the proposal by the respondent and they caste their vote supported in favour of the above said Balan Mackali. The respondent thus violated the whip issued by the District Secretary of C.P.I. As, the respondent caste his vote, violating the whip and in favour of Sri.Balan Mackali, the candidate proposed by the communist party Sri.P.Kamaraj was declared defeated. The respondent who is legally obliged to obey the whip issued by the District Secretary of C.P.I who is legally competent to issue the whip and there by committed defection. The respondent wilfully and voluntarily left the CPI by disobeying the whip_ _6. The act of the respondent above mentioned is clear violation of the direction in form of whip issued by the District Secretary of C.P.I. who is legally competent to issue the whip. The respondent voluntarily left CPI. It tantamount to violation of whip issued by the District Secretary of C.P.I and it is an act of violation as contemplated under section 3 of the act. Hence the respondent is liable to be proceeded for defection in accordance with section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999._ Similar averments are contained in the other petitions also. 3. Since the complaints were not filed within the stipulated period of 15 days in terms of the provisions contained in rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, the first respondent had along with the complaints filed separate WP(C)No. 25140 of 2011 -3- applications to condone the delay in filing the applications. By Ext.P6 order passed on 29.8.2009 after notice to and hearing the petitioners, the State Election Commission condoned the delay in filing the applications and the petitions were taken on file. The petitioners herein challenged that order by filing W.P.(C) No.27293 of 2009 in this Court. The said writ petition was dismissed by judgment delivered on 3.11.2009. The petitioners thereafter filed Exts. P7 to P10 objections. Thereafter, evidence on both sides was recorded. Later, the first respondent filed a memo in O.P.No.64 of 2009 to the effect that the dispute has been settled outside the Court and therefore he is not pressing the petition. When the petitions were taken up for hearing, the learned counsel on both sides did not appear. By Ext.P12 order, the State Election Commission held that a petition seeking disqualification of members of a local authority cannot be dismissed as settled out of Court or as not pressed and that it has to be adjudicated on the merits, particularly when evidence was adduced on both sides. The State Election Commission after analysis of the evidence oral and documentary available in the case held that though the District Secretary of the Communist Party of India was competent to issue a whip and a whip was in fact issued, it was not served in the prescribed manner on the petitioners. The State Election Commission thereafter WP(C)No. 25140 of 2011 -4- proceeded to hold that the petitioners are liable to be disqualified for the reason that they have voluntarily abandoned the membership of the political party to which they belong. The petitions were accordingly allowed and the petitioners were disqualified from being members of the Devikulam Grama Panchayath as provided under section 3 of the Act and from contesting as candidates in the elections to any local authority for a period of six years from 9.8.2011. Ext.P12 order is under challenge in this writ petition. 4. Both the respondents have been served and they have entered appearance through counsel. Heard learned counsel on both sides. By separate applications filed under section 4 of the Act, the first respondent sought to disqualify the petitioners on the allegation that they have violated the whip issued by the District Secretary of the Communist Party of India who was competent to issue the same. The State Election Commission after an analysis of the evidence oral and documentary available in the case held that though PW3, the District Secretary of the Communist Party of India was competent to issue the whip, there is no material to show that the whip had been served on the petitioners. The State Election Commission accordingly held that the whip was not issued in terms of the provisions contained in the Kerala Local Authorities (Disqualification of Defected Members) Rules, WP(C)No. 25140 of 2011 -5- 2000. The said finding in paragraph 11 of Ext.P12 order is extracted below: _“It is not in dispute that the District Secretary is the person competent to allot symbol to CPI candidates in the election. So the direction given by PW3 is found to be as provided by Rule 4 of the above Rules. Of course such a direction was not accepted by the respondent in OP No.68/09 and therefore it cannot be said that he was given whip as provided by the Rule. It is also seen that the procedure prescribed for giving whip are not strictly complied within this case”._ 5. The State Election Commission thereafter proceeded to consider whether the petitioners are otherwise disqualified evidently on the premise that in addition to the violation of whip, another ground of disqualification had been alleged in the petitions. The State Election Commission proceeded to hold that as the petitioners had contested the election to the office of President knowing full well that the first respondent herein was the official candidate of the Communist Party of India for the post of President and voted against him, it must be held that they have voluntarily given up the membership of the party to which they belong. It was held that the conduct of the petitioner in voting against the first respondent who was the official candidate of the Communist Party of India for the post of President and in getting the fifth petitioner elected as the President is sufficient to prove that they have voluntarily given up the membership of the Communist party of India which had set them up as candidates in the elections WP(C)No. 25140 of 2011 -6- held in the year 2005. ## 5. In **Chinnamma Varghese** v. **State Election Commission** (2010 (3) KLT 426) a Division Bench of this Court of which I was a member, after analyzing section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 held as follows: _18. We have already noticed from the scheme of S.3 that there are three distinct heads under which a person can incur a disqualification for being amemeber of the local authority. Under the scheme of the Act an independent candidate incurs a disqualification only if the independent candidate belongs to a coalition as defined under the Act and being a memeber of such coalition either withdraws from the coalition subsequently or joins any other political party or coalition. Secondly, such a disqualification comes to visit upon the independent candidate in the event of such an independent candidate voting contrary to any legally binding written direction issued by a person duly authorised by the coalition._ _19. Incurring of the disqualification under any one of the above mentioned contingencies depends upon the existence of a definite set of facts, which facts are required to be spefifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act._ _20. The law of pleadings has been very definite in this country from atleast 1930 onwards. In the judgment reproted in Siddik Mohammed Shah v. Mt.Saran (AIR 1930 Privy Council 57(1), the Privy Council held that no amount of evidence can be looked into upon a plea which was never put forward. The said principle had been approved by the Supreme Court in Kashi Nath v. Jaganath ((2003) 8 SCC 740) a6 para.17 as follows:_ - _" As noted by the Privy Council in Siddik Mohd. Shah v. Saran (AIR 1930 PC 57(1)) and Trojan and Co. v.Rm. N.N.Nagappa Chetiar (AIR 1953 SC 235) when the evidence is not in line with the pleadings and is at variance with it and as in this case, in virtual self-contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon"_ _21. The insistence upon a specific plea has a rationale behind it. It is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted_ WP(C)No. 25140 of 2011 -7- _against them and what are the rights or obligations sought to be enforced against them. Therefore, the order of the first respondent, in so far as it chose to permit evidence agaisnt the appellant herein to the effect that the appellant withdrew from the coalition of L.D.F., is without any pleading and therefore, in the light of the principle of law extracted earlier could not have been looked into. To that extent we are of teh opinion that the first respondent as well as the learned Judge fell in error in coming to the conclusion that such a course of action is permissible in view of the decision of the Supreme Court reported in Sardul Singh v. Pritam Singh ((1999) 3 SCC 522). In the said judgment the Supre Court at para.12 observed as follows:_ - _It is well settled that notwithstanding the absence of pleadings before a court or authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an oppurtunity to produce evidence or cross-examine witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later"_ _In our view the above observation is to be understood in its context. At any rate the law regarding the election disputes in this country always insisted upon a more stringent rules of pleading and proof._ 6. In the instant case, apart from alleging that the petitioners are disqualified for violating the whip issued by the District Secretary of Communist Party of India, the first respondent had no specific case in the petitions filed by him before the State Election Commission that the petitioners have voluntarily given up the membership of the political party to which they belong. In O.P.No.64 of 2009 the only averment, besides the averments regarding violation of the whip is that “the respondent willfully and voluntarily left the CPI by disobeying the whip”. Such an averment is available in O.P.Nos.65 of 2009 and 66 WP(C)No. 25140 of 2011 -8- of 2009 and 67 of 2009 as well. In O.P.No.65 of 2009, a copy of which is produced as Ext.P2, there is no averment that the respondent voluntarily left the CPI by disobeying the whip. However in the original of O.P.No.65 of 2009 made available by the learned standing counsel for the State Election Commission the words “respondent has willfully and voluntarily left the Communist Party by his act” are seen incorporated in paragraph 5 and the words “the respondent voluntarily left the CPI” are seen incorporated in paragraph 6 without any attestation either by the petitioner therein or his counsel. In O.P.No.66 of 2009, a copy of which is produced as Ext.P3 similar averments have been incorporated without proper attestation. In O.P.No.67 of 2009, a copy of which is produced as Ext.P4 also similar averments are seen incorporated without proper attestation. In O.P.No.68 of 2009 there is no such averment. But in the original of O.P.No.68 of 2009 made available by the learned standing counsel for the State Election Commission the words “and he willfully and voluntarily left the CPI” are seen incorporated in paragraph 6 without proper attestation. Copies of O.P.Nos.64, 65, 66, 67 and 68 of 2009 served on the petitioners herein are produced along with the writ petition as Exts.P1 to P4. In the copy of O.P.No.64 of 2009 served on the first petitioner (Ext.P1) there is no averment that he voluntarily left the CPI. In the original of WP(C)No. 25140 of 2011 -9- O.P.No.64 of 2009 made available by the learned standing counsel for the State Election Commission, the words “The respondent voluntarily left the CPI by disobeying whip” are seen incorporated in paragraph 5 and the words “The respondent wilfully and voluntarily left the CPI” are seen incorporated in paragraph 6 without any attestation either by the petitioner therein or his counsel. Apart from vaguely stating in three of the petitions that the respondent therein wilfully and voluntarily left the Communist Party of India by disobeying the whip, there is no averment to the effect that the respondents before the State Election Commission have voluntarily given up their membership of the political party to which they belong. As held by the Division Bench in **Chinnamma Varghese v. State Election Commission** ( _supra_ ) the incurring of any of the disqualification depends upon existence of a definite set of facts which are required to be pleaded before they are sought to be proved to establish an allegation of disqualification under the Act. In such circumstances, though the State Election Commission was perfectly right in proceeding to adjudicate the dispute on the merits, I am of the opinion that disqualification of the petitioners on a ground which was not properly pleaded and the petitioners were not called upon to defend, cannot be sustained even on the findings entered by the Commission. WP(C)No. 25140 of 2011 -10- I accordingly allow the writ petition and set aside Ext.P12 order disqualifying the petitioners. The parties shall bear their respective costs. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge