Saji Varghese v. A. Basheer and Kerala State Election Commission

WP(C) NO. 13638 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO. 13638 OF 2023** ## **PETITIONER/S:** **SAJI VARGHESE, AGED 57 YEARS S/O K.E. VARGHESE, KULATHUNGAL HOUSE, CHITTAR PO, PATHANAMTHITTA DISTRICT, PIN 689 663** **BY ADVS. JACOB P.ALEX JOSEPH P.ALEX AMAL AMIR ALI MANU SANKAR P.** ## **RESPONDENT/S:** **1 A. BASHEER, AGED 61 YEARS S/O. APPAKUTTY, ANZIN MANZIL, CHITTAR PO, PATHANAMTHITTA DISTRICT. PIN 689 663 (MEMBER, WARD NO. 4, CHITTAR GRAMA PANCHAYAT) 2 THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. PIN 691 033, PIN - 691033** **BY ADVS. Liji J Vadakkedom SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA TOM E. JACOB(K/1144/2001) REXY ELIZABETH THOMAS(K/635/1995) ATHUL V. VADAKKEDOM(K/003544/2022)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 13638 OF 2023 2 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C.) No. 13638 of 2023 -------------------------------------Dated this the 13[th] day of March, 2024** ## **JUDGMENT** This Writ Petition is filed challenging the order dated 04.04.2023 in O.P.No.15/2021 of the Kerala State Election Commission, Thiruvananthapuram, by which, the petitioner was declared as disqualified to be a member of Chittar Grama Panchayat as provided under section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 [for short, ‘the Act 1999’]. As per the above order, the petitioner is also declared as disqualified for contesting as candidate in an election to any local authorities for a period of six years as provided under section 4(3) of the said Act. Ext.P3 is the order. 2. The 1[st] respondent filed O.P.No.15/2021 before the State Election Commission, Thiruvananthapuram under WP(C) NO. 13638 OF 2023 3 section 4 of the Act 1999 for declaring that the petitioner had committed defection and hence disqualified to continue as a member of Chittar Grama Panchayat and to declare him as disqualified to contest as a candidate to any election to the local body. The case of the 1[st] respondent is that, he and the petitioner herein are members of Chittar Grama Panchayat representing two different wards. They have contested and elected as the official candidate of Indian National Congress in its official symbol “Hand” in the general election held in 2020 to the local bodies in Kerala. The 1[st] respondent stated that the District President of Indian National Congress allotted the official symbol of the party “Hand” to all contesting candidates of Indian National Congress. After the election, all the returned candidates of Indian National Congress had given sworn declaration to the Secretary of the Panchayat showing their affiliation with political party as Indian National Congress. It is stated that the petitioner had given a declaration to the Secretary as per Rule 3(2) of the Kerala Local Authorities (Disqualification of Defected Members) WP(C) NO. 13638 OF 2023 4 Rules 2000 [for short, ‘the Rules 2000]. It is submitted that the petitioner affirmed that he was an official candidate of Indian National Congress and also indicated the other member of Indian National Congress having affiliation with Indian National Congress in the declaration. On the basis of it, the Secretary had prepared political affiliation Register of the Members, wherein also the petitioner is mentioned as a member of the Indian National Congress. It is the case of the 1[st] respondent that, from the available records with the Secretary , it is evident that the petitioner was a member of Indian National Congress at the time of election and swearing in as member. Major political parties at Chittar contested the election by forming coalition as UDF, LDF and NDA. There are 13 wards in Chittar Grama Panchayat and the Indian National Congress (I) secured 6 seats under the banner of UDF. LDF secured 5 seats and BJP secured 2 seats. A meeting of party office bearers and elected representatives of local bodies comprised in the assembly constituency of Konni was convened on 23.12.2020 to propose the President and Vice WP(C) NO. 13638 OF 2023 5 President candidates in the panchayat coming within the Konni assembly constituency, is the case of the 1[st] respondent. In that meeting, all elected members of the Indian National Congress were present and majority of the members proposed the 1[st] respondent as the President candidate in the Chittar Grama Panchayat, is the submission. It is also submitted that the whip was issued to the elected members of the Congress including the petitioner to vote in favour of the 1[st] respondent and Smt.Susamma Das as President and Vice President respectively. It is also submitted that the whip was affixed in front of the house of the petitioner. It is the further case of the 1[st] respondent that, in the scheduled meeting of the panchayat to elect the President held on 30.12.2020, the petitioner in gross defiance of the direction issued by the party contested himself as the President with the support of rival front LDF. In the Vice President election also, the petitioner voted in favour of LDF whip, is the submission. Thus, the petitioner who was a member of the Indian National Congress was elected as the President candidate of LDF is the submission. In the WP(C) NO. 13638 OF 2023 6 afternoon session, while the Vice President election was going on, the petitioner voted in favour of the LDF nominee is the further grievance of the 1[st] respondent. Thus, it is submitted that the petitioner had voluntarily abandoned his membership from Indian National Congress which fielded him as a candidate in the General Election. The petitioner denied the contentions of the 1[st] respondent. It is his definite case that, he never abandoned or voluntarily given up his membership from the Indian National Congress and he has no alliance or relationship with LDF or any other political party and he is having every right to continue as a member of Chittar Grama Panchayat. It is also the case of the petitioner that the District Congress Committee has never furnished a copy of the whip to the Secretary of the panchayat. It is also submitted that the District Congress Committee, Pathanamthitta and the parliamentary party of the Indian National Congress in the panchayat failed to propose official candidates for the post of President and Vice President in the election held on 30.12.2020 and the petitioner was not communicated any WP(C) NO. 13638 OF 2023 7 decision from the District Congress Committee. Hence the petitioner himself has decided to contest in the President election and in the election, he got majority and was elected as the President of the Panchayat, is the submission 3. To substantiate the case, PW1 to 7 were examined on the side of the 1[st] respondent and RW1 and RW2 were examined on the side of the petitioner. Exts.A1 to A10, B1 and X1 to X4 were marked. After going through the evidence and the documents, the Commission found that the 1[st] respondent succeeded in proving the case and consequently disqualified the petitioner. Aggrieved by the same, this Writ Petition is filed on 11.04.2023. 4. Heard learned counsel for the petitioner and the counsel appearing for the 1[st] respondent. I also heard the Standing Counsel appearing for the 2[nd] respondent. 5. The counsel for the petitioner reiterated the contentions raised in the Writ Petition. The counsel also relied on the judgment of the Apex Court in **Subhash Desai v.** **Principal Secretary, Governor of Maharashtra & Ors.** WP(C) NO. 13638 OF 2023 8 [2023 LiveLaw (SC) 422] and submitted that, there is no whip as provided in the Act 1999. 6. The counsel relied paragraph Nos. 109 and 113 of the judgment of the Apex Court in **Subhash Desai's** case (supra). The learned Standing Counsel appearing for the 2[nd] respondent submitted that if a member of the local authority belonging to any political party voluntarily gives up his membership of such political party, that itself is enough to order disqualification. It is also submitted by the Standing Counsel that there is sufficient evidence to show that there was a Whip and it is served to the petitioner. The Standing Counsel also relied the judgment of the Division Bench of this Court in **Tissy v. State Election Commission** [2022 (3) KLT Online 1200], **Rama Bhaskaran v. Kerala State Election Commission and others** [2018 (2) KHC 126], **Sheo Paul v. Kerala State Election Commission** [2005 KHC 1241] and also **Biju R.S. and others v. Kerala State Election Commission and others** [2009 (2) KHC 839] to support his contention. The Standing Counsel also relied on the judgment WP(C) NO. 13638 OF 2023 9 dated 2.2.2024 in WA No. 51/2024. 7. This Court considered the contention of the petitioner and the respondents. It is an admitted fact that the petitioner is a nominee of Indian National Congress / UDF in the election to the Chittar Panchayat during December, 2020. It is also an admitted fact that the petitioner contested in the election to the post of President on 30.12.2020 and it is also an admitted fact that the petitioner succeeded and was elected as the President of the Panchayat, of course with the support of the LDF members. From a reading of Section 3 of the Act 1999, it is clear that 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 person or authority, authorised by it in this behalf in the manner prescribed, votes or abstain from voting in a meeting of a Municipality in an election of its Chairperson, Deputy Chairperson, a member of Standing Committee or Chairman of Standing Committee or in the WP(C) NO. 13638 OF 2023 10 meeting of a Panchayat in an election of its President, VicePresident, a member of the Standing Committee or the Chairman of the Standing Committee or in a voting on a nonconfidence motion against any one of them except a member of a Standing Committee, he shall be disqualified for being a member of that local authority. Sub-Section (2) of Section 3 of the Act, 1999 says that the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of the such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned. The concept of voluntary giving of membership was explained by this Court in several decisions. In **Rama Bhaskaran's** case (supra), this Court observed that in contesting as a candidate for the post of President of Panchayat, after being sponsored by rival coalition and emerging successful in the said election on the strength of votes polled by the said rival coalition, the candidate stands disqualified on the ground that he had voluntarily given up membership of his own political party. In **Sheo Paul's** case WP(C) NO. 13638 OF 2023 11 (supra), it is stated that the person issuing whip has to establish that he is the whip of the parliamentary party of the political party as laid down in Section 3(1) (a) of the Act, 1999. In **Sheo Paul's** case (supra), this Court also observed like this : “23. Having bestowed anxious consideration to the materials on record on this issue, the view taken by the Election Commission in Ext. P4 that the writ petitioner had not only the support of the rival coalition, by name LDF, but he was also nominated by a person belonging to the rival coalition, LDF, cannot be found fault with. May be that the volition of the members of the LDF coalition as regards casting their vote is beyond the petitioner's reach, but it is the accepted fact that his candidature was on the nomination of a member belonging to the rival LDF coalition and that he had, of his volition contested on the basis of. such nomination. A bounty may be held out, but. to receive it is always subject to the volition of the taker. It is also a matter of record that the rival coalition had issued a whip to its members to cast vote in favour of the writ petitioner. The petitioner also has not apparently challenged the case of the second respondent that he had not been thereafter attending the meetings of the party to which he belonged. So much so, the finding of the Election Commission in Ext. P4 that the petitioner in WP (C) No. 9896/2005 had voluntarily given up his membership of the political party to which he belonged, cannot be treated as WP(C) NO. 13638 OF 2023 12 unreasonable or perverse. The said findings are very much available on the materials on record and inferentially, they are appropriate. Such findings of the Election Commission stand and the challenge against the same in WP (C) No. 9896/2005 fails.” 8. In **Biju R.S.'s** case (supra), this Court observed that the disqualification for voluntary giving up the membership of one's party is not dependent on the violation of the whip alone. The relevant paragraph is extracted hereunder : 17. “Under the Act, a member can be disqualified if he has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a whip / direction issued by the political party. Disqualification for voluntarily giving up the membership of one's party, is not dependant on the violation of the whip. The intention of the Act is that the member who has violated the whip or has abandoned the membership of the political party to which he belongs shall be disqualified. It is not necessary to hold that the member has violated the whip in order to hold that he has voluntarily abandoned the membership of his political party. The grounds for disqualification are distinct and are not interlinked. Therefore even if this Court were to hold that the petitioner before the Commission has not proved that PW 2 had issued and served on the writ petitioners a direction regarding the voting on the No Confidence Motions that were tabled on WP(C) NO. 13638 OF 2023 13 14/05/2008, the Commission was justified in holding that the petitioners have voluntarily abandoned their membership in the Indian National Congress.” ## 9. The Division Bench of this Court in the judgment dated 02.02.2024 in W.A. No. 51/2024 observed like this : “13. The Mannar Grama Panchayat has 18 wards. The appellant was nominated as the official candidate from INC in ward No. 11 and won the election. Out of 18 wards, 9 candidates from UDF and 8 from LDF got elected. The balance one seat was secured by the BJP. INC and IUML constituted the UDF coalition, whereas the CPI(M) and KC(M) formed the LDF coalition. The lone BJP member was not part of any coalition. Therefore, when the election to the posts of President and Vice President was held on 30.12.2020, the candidates nominated by UDF could have won the election, if all UDF members voted for their candidate. But in the present case, though a candidate was contesting the election for President from UDF, of which the appellant was a member, he voted in favour of the candidate who was from the opposite party and because of the appellant’s one vote, the person from the opposite party got elected. Not only this, the appellant filed his candidature for the post of Vice President of the Panchayat, even though a member from UDF was also contesting. It is interesting to note that the LDF did not nominate any of its members as a candidate for Vice President. Therefore, an inference can be drawn that the LDF members had decided to vote in favour of the present WP(C) NO. 13638 OF 2023 14 appellant, who, in spite of being a member of INC, had voted for their candidate for the post of President.” 10. From the above dictum laid down by this Court, it is clear that voluntary giving up of membership is independent ground for disqualification. The Commission considered all the contentions of the petitioner in detail and thereafter concluded that the petitioner is disqualified of voluntary giving up of membership in the political party. It will be better to extract the relevant portion of Ext.P3 order. “On evaluating the instant case, it is evident that the respondent herein was elected to the Chittar Grama Panchayat as an official candidate of INC and filed mandatory declaration under Rule3(2) of the Kerala Local authorities (Disqualification of Defected Members) Rules 2000 with the Panchayat Secretary to that effect. Thereafter he contested and elected as the President of the Panchayat in the election held on 30.12.2020 with the support of rival political parties. Moreover the respondent has affirmed in cross examination that he has voted for LDF nominee in the election to the post of Vice President, which led to defeat of UDF nominee. The minutes of meetings of the Panchayat held on 30.12.2020 for the election to the post of President and Vice-President (Ext.X3 &X4) produced by PW7, the Secretary of the Panchayat would also prove the fact. The said acts of the respondent attracted the first limb of Section 3(1) (a) of the Act. Standing in an election WP(C) NO. 13638 OF 2023 15 as a candidate to the post of President, when admittedly there is no such mandate from the political party and then defeating the candidate, whom the competent authority of the party described and recognized as official candidate of the party, by securing the vote of the opposition can only be an act of disloyalty. Needless to say, that an action of disloyalty of such nature would amount to voluntarily giving up membership of the particular political party. Therefore the respondent had incurred the disqualification of voluntarily giving up membership in the political party.” 11. I see no reason to interfere with the above finding. Moreover, the contention of the petitioner that there is no whip and there is no service of whip by way of affixing at the residence was rejected by the commission in detail. It will be better to extract the discussion of the commissioner on this aspect also. “R.4 specifically provides that while issuing a direction under sub rule (1) directly the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixture, it shall be done in the presence of at least two witnesses. Moreover the rule mandates to furnish a copy of whip to the Secretary Grama Panchayat. In the present case, the petitioner has claimed that the whip was served by affixture in presence of witnesses and apart from the assertions such witnesses were examined as PW2, PW3 and WP(C) NO. 13638 OF 2023 16 PW4. Moreover PW6, the Sub Inspector of Police, Chittar Police Station has categorically stated in evidence that the whip was affixed at the Respondent's house by 9.30am on 30.12.2020 in the presence of police team and this has seen corroborated in Ext.B1 document, a report of SHO Chittar Police station, which is produced by the respondent. RW2 has also confirmed the presence of police constable at the residence of the Respondent. On an evaluation of the oral evidences and materials on record as above in its entirety, it can be concluded that the the 'direction in writing/whip was served by affixture in presence of witnesses and respondent has a constructive knowledge thereof. Therefore the respondent is liable to be disqualified on account of disobeying the whip under the second limb of Section 3(1) (a).” 12. I see no reason to interfere with the above finding also. The decision relied by the petitioner in **Subhash desai's** case is not applicable to the facts and circumstances of this case. In this case, Act 1999 and Rules 2000 is applicable. I see no reason to interfere with Ext.P3 order. Therefore, this writ petition is dismissed. ## **SD/-** **P.V.KUNHIKRISHNAN JUDGE** Sbna/SKS WP(C) NO. 13638 OF 2023 17 ## **APPENDIX OF WP(C) 13638/2023** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT IN OP NO. 15 OF 2021 BEFORE THE 2ND RESPONDENT** **Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY PETITIONER IN OP NO. 15 OF 2021 BEFORE THE 2ND RESPONDENT** **Exhibit P3 TRUE COPY OF THE ORDER DATED 04-04-2023 IN OP NO. 15 OF 2021 OF THE 2ND RESPONDENT**