Sujith Sreerengum v. Sunil Sradheyam and Kerala State Election Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945** ## **WP(C) NO. 22501 OF 2023** ## **PETITIONER :** ## **SUJITH SREERENGUM,** **AGED 45 YEARS, S/O P.K KRISHNA PILLAI, SREERENGUM, KURATTIKKADU, MANNAR P.O ALAPPUZHA, PIN – 689 622** **BY ADVS. ARUN.B.VARGHESE RAKHI RAJ S.SREEKUMAR (SR.)** ## **RESPONDENTS :** **1 SUNIL SRADHEYAM, AGED 51 YEARS S/O GANGADHARAN, SRADHEYAM, KUTTAMPEROOR P.O, MANNAR P.O., ALAPPUZHA, PIN – 689 623** **2 THE KERALA STATE ELECTION COMMISSION, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695 033** **R1 BY ADV.NANDAGOPAL S.KURUP R2 BY DEEPU LAL MOHAN BY ADV.ABHIRAM T.K.(K/548/2020)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2023, THE COURT ON 21.11.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.22501 of 2023 2 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-= **W.P.(C) No.22501 of 2023** -=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 21[st] day of November, 2023** ## **JUDGMENT** The writ petitioner had filed a petition before the Kerala State Election Commission under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, 'the Act'), seeking to declare the first respondent as disqualified under Section 3 of the Act. By the impugned order dated 15.06.2023, the said petition was dismissed. This writ petition under Article 226 of the Constitution of India is in challenge against the said dismissal. 2. In the elections to the Local Self Government Institutions, held in December 2020, the writ petitioner and the first respondent were candidates nominated by the Indian National Congress (INC) - a constituent of the United Democratic Front (UDF) and were elected as members of Ward No.7 and Ward No.11, respectively, of the Mannar Grama Panchayat. According to the writ petitioner, the first respondent had voluntarily given up membership of the political party under whose banner he was elected and, that due to the failure to abide by the directions issued in a whip, he became disqualified under section 3 of the Kerala Local Authorities (Prohibition of Defection) Act 1999, (for short ‘the Act’). W.P.(C) No.22501 of 2023 3 3. Writ Petitioner alleged in the petition for disqualification filed under Section 4 of the Act that the first respondent voted against the official candidate of the UDF in the elections to the President of the Mannar Grama Panchayat and further stood as a rival candidate against the candidate fielded by the UDF in the elections to the Vice-President of the said Panchayat. It was also pleaded that the respondent had disobeyed the written directions, resulting in the defeat of the UDF candidate in the election of the President and thus became disqualified to continue as a member of the Council. 4. The first respondent, in his objections filed before the Election Commission, stated that he was not a member of INC and that he finally contested the election as the official candidate of INC on the assurance that he would be made the Vice-President of the Panchayat if the party gains majority. First respondent also pleaded that the alleged whip was never issued and that his signature was obtained on a paper styled as a whip without it being filled up. It was further averred that the decision or the stance of the political party was never discussed at the meetings of the elected ward members, and as such, there was no official candidate or any valid whip issued to the first respondent, and therefore, he was at liberty to vote as he wished. The first respondent also pleaded that he stood as the candidate for the post of Vice-President since the council members requested him to do so, and the elected members of the INC had approved his candidature for the post of Vice-President. W.P.(C) No.22501 of 2023 4 5. Initially, by its order dated 02.08.2022, the Election Commission dismissed the election petition after finding that there was no evidence of any valid whip served on the members of the INC. However, the dismissal of the election petition was challenged before this Court in W.P.(C) No.27667 of 2022. By judgment dated 02.05.2023, the learned Single Judge allowed the aforesaid writ petition in part and directed reconsideration of the issue regarding voluntary abandoning of membership from the party but after upholding the finding on the issue of the whip. The learned Single Judge noticed that the Election Commission had completely failed to adjudicate the issue of voluntary giving up of membership, and hence, a fresh consideration to that effect was directed. 6. Subsequent to the said direction, the Election Commission once again considered the case of the first respondent on the basis of the allegation regarding voluntary giving up of membership. By the impugned order, the Election Commission held that the first respondent's conduct in voting at the election to the post of President and the Vice-President of Mannar Grama Panchayat could not be treated as having voluntarily given up membership, in the absence of any valid whip issued by an authorised person. 7. Sri. S.Sreekumar, the learned Senior Counsel, duly instructed by Sri. Arun B. Varghese, the learned counsel for the petitioner, contended that the Election Commission had gone on a wrong tangent in dismissing the election petition. Referring to the evidence adduced in the case, it was W.P.(C) No.22501 of 2023 5 submitted that there was clear evidence, including admissions by the first respondent, that he had voluntarily given up membership of the party under whose banner he was elected. The learned Senior Counsel also submitted that apart from voting in favour of the LDF candidate in the elections to the post of President, the first respondent himself had stood as a rival candidate to the post of Vice-President against the UDF candidate and therefore the conduct of the first respondent is more than sufficient to attract the vice of disqualification. 8. Sri. Nandagopal S. Kurup, the learned counsel for the first respondent in his impressive arguments, contended that the allegation that the first respondent had voted against the official candidate of the party under whose banner he was elected is neither borne out by the pleadings nor by the evidence and that there was ambiguity regarding the official candidate itself. When such ambiguity exists, according to the learned Counsel, the extreme measure of disqualification ought not to be imposed. The learned Counsel argued that the question of absence of a proper whip issued is intrinsically connected with the question of the absence of an official stance for the INC. Without such an official stance being made known properly and without conveying who the official candidate was, the first respondent cannot be alleged to have become disqualified for not aiding the official candidate at the election. The learned counsel relied upon the decisions in **Varghese V.V.and Another v. Kerala State Election Commission and Another** [2009 (3) KHC 42] W.P.(C) No.22501 of 2023 6 as well as in **Joseph K.M. v. Babychan Mulangasseri and Others** (2015 (1) KHC 111) in support of his contentions. 9. Sri. Deepu Lal Mohan, the learned Standing Counsel for the Election Commission, was also heard. The said Counsel handed over to the Court, the pleadings and the evidence adduced in the case. 10. The evidence adduced in the case included depositions of PW1 to PW3 and Exts.A1 to A7 on behalf of the petitioner and RW1 to RW3 on behalf of the respondents apart from the Court exhibit marked as Ext.X1. The petitioner was examined as PW1 while the first respondent was examined as RW1. 11. While appreciating the contentions of the learned Counsel, it has to be borne in mind that, in the earlier round of litigation, i.e. in W.P. (C) No.27667 of 2022, the learned Single Judge had held in the judgment dated 02.05.2023 that the issue of disqualification on the basis of voluntary giving up of membership had been pleaded in the petition for disqualification and that the said issue ought to have been considered by the Election Commission. It was observed in paragraph 34 of the said judgment that: “ _34. The Standing Counsel for the Election Commission would submit that the petitioner has not prosecuted the case on the ground of voluntarily giving up membership of the party and has not objected to the issues framed by the Election Commission which did not include the said ground. The OP filed by the petitioner would show that the petitioner had urged that ground and the Objection filed by the 1st respondent before the Election Commission would show that the 1st respondent was aware of the pleadings of the petitioner. Paragraphs 2_ W.P.(C) No.22501 of 2023 7 _and 19 of Ext.P3 Deposition of the petitioner as PW1 would establish that the petitioner has adduced evidence in this regard. There is nothing on record to show that the issues to be decided were framed by the Election Commission in advance and the petitioner had opportunity to make objection in that regard.” (emphasis supplied)_ 12. The learned Single Judge had directed the case to be reconsidered pursuant to the above observation. The said judgment has not been challenged and has become final. Therefore, it is no longer possible in the eye of law, for the first respondent to raise the contention on lack of pleading regarding the voluntary giving up of membership. In view of the judgment in W.P.(C) No.27667 of 2022, the first respondent is estopped from raising a contention that there is no pleading regarding the voluntary giving up of membership. 13. The Election Commission proceeded on the basis that the voluntary giving up of membership had not been proved since there was no valid whip. It is already settled as held in the decision in **Biju R.S and** **Others v. Kerala State Election Commission and Others** (2009 (2) KHC 839), that voluntary giving up of membership is distinct from violation of the whip or directions. The decision in **Joseph K.M v. Babychan Mulngasseri and Others** (2015 (1) KHC 111) is also relevant in this context. Since both are distinct, a party alleging disqualification is entitled to make out such a case by the conduct of the opponent. If there is evidence to convince that circumstances have been brought out in evidence to conclude that the respondent had voluntarily given up his W.P.(C) No.22501 of 2023 8 membership in the party, nothing precludes the Commission from considering such an issue. 14. The circumstances pointed out for justifying the allegation of voluntarily giving up of membership are two: (i) in the elections to the post of President of the Mannar Grama Panchayat, the first respondent voted against the candidate of the UDF, and (ii) the first respondent himself stood as a candidate for the post of Vice-President of the Grama Panchayat against the candidate nominated by UDF. 15. On a perusal of the evidence adduced, it is seen from Ext.A1 the Form II declaration submitted by the first respondent, that he stood as a candidate of the INC with the symbol 'hand' and that he is a part of the UDF which had nine members. It is also seen from Ext.A2, the register of the Mannar Gramna Panchayat relating to the political backings of each member, that the first respondent was a member of the INC and a part of the UDF. Further, from Ext.A6, the minutes of the meeting held on 30.12.2020, it has come out that Smt.Radhamani Sasheendran was nominated by Smt. Shyna Navas as a candidate for the post of President. On a perusal of the Form II declaration (Ext.A1), it can be understood that Smt.Radhamani Sasheendran, the nominated candidate for the post of President and Smt.Shyna Navas, the person who suggested their names are both members of the UDF. It is further seen from Ext.A7, the minutes of the meeting of the Mannar Grama Panchayat held on 30.12.2020 that, for the post of Vice-President, Smt.Shalini W.P.(C) No.22501 of 2023 9 Raghunath suggested the name of the first respondent, while the name of Smt.Shyna Navas was suggested by Sri.Salim Padippurakkal. It has to be appreciated that Smt.Shyna Navas and Sri. Sunil Shradheyam-the first respondent, are both shown as members of the UDF as per the declaration submitted by the petitioner himself. Therefore, it can be deduced from the records produced that the petitioner stood as a rival candidate against his own party member for the post of Vice-President and was even nominated by a person not included in the Form II declaration as part of the UDF at Mannar Grama Panchayat. 16. In the evidence of PW3, who is the President of the Alappuzha District Congress Committee, he has stated that he had issued the official symbol of the INC to the petitioner as well as the first respondent and that he had informed, through his official letter-pad with his seal and signature, that, for the post of Vice-President, the elected members should vote for the candidates put up by the party. Of course, the said document is marked as Ext.A3 and was found in the earlier round, to have not been properly served as a valid whip. However, a crucial circumstance in the instant case regarding the voluntary giving up of membership is the first respondent's evidence as RW1. In his crossexamination, RW1 had admitted that he stood for the Panchayat elections as a candidate of the UDF and that he had given Ext.A1 declaration. The following evidence given by RW1 in his cross-examination is crucial, and is extracted below : W.P.(C) No.22501 of 2023 10 “30.12.2020 ൽ നടന പ�സ�ഡൻറ� ത�രത�ട�പ�ൽ LDF സസനസർത�യസയ� മതര�ച�� T.V.ര��നക�മസര�യസണ�. പ�സ � മ റ�ങ�ൽ ഞസൻ �ത$ട�ക�കയ�&, Ext.A6 പ�കസര& ഒൻ��സമ�സയ� ഒപ�ട�കയ�& ത(യ �ട�ണ� . ആ ��രത�ട�പ�ൽ Ext.A3, A4, A5-തല ന�ർദദശങൾക� വ�ര�ദമസയ� �സ$ൾ LDF സസനസർഥ�ക�ദവണ� ദവസട� ത(യ � ശര�യസദണസ?(Q.) ഞസൻ ദവസട�ത(യ � T.V.ര��നക�മസര�കസണ�. Ext.A6 ദരഖ ശര�യസണ�. Ext.A7 ദരഖപ�കസര& ഞസൻ LDF ��ന�ണദയസട�ക7ട� വവസ�പ�സ�ഡൻറ� സസനദ9യ�ക� മതര�ച�ട�ള കസര;& ശര�യസണ� . ദകസൺപ=സ� ന�ർദദശ9�ന� വ�ര�ദമസയ� LDF ന� ഞസൻ ദവസട�ത(യ�ക വഴ� മസനസർ പ=സമ�ഞസയ9�ൽ UDF ന� ഭരണ& നഷമസയ�. അപ�കസര& �സ$ൾ സDദമധയസ �സർട�ബന& ഉദ�ക�ച�തവന�&, ക7റ�മസറ&വഴ� അദയസ=;നസവ�ന�സണ� എന�& �രസ��കസരൻ �റയ�ന�? (Q.) അറ�യ�ല. (Ans.)” 17. The above-extracted deposition of RW1 is an unequivocal admission that he had voted in favour of the LDF candidate for the post of President and also that he stood in the elections for the post of VicePresident of the Panchayat with the support of the LDF. He further affirms in the deposition that contrary to the directions of the Congress, he voted for the LDF and thereby, the UDF lost its governance in the Grama Panchayat. The above admissions are more than sufficient to evidence voluntarily giving up of membership of the political party under whose banner the first respondent was elected. 18. In the decision in **Moly George v. Benny Thomas and Another** [2021 KHC 2056], a learned Single Judge has observed that when there is no valid whip as per law, disqualification with reference to W.P.(C) No.22501 of 2023 11 voluntary giving up of membership must be with clear evidence to prove that a member had defied party directives. The said observation applies squarely to the factual situation in the instant case. Further, in the decision in **Lizy Valsalan v. Suja Salim and Another** (2015 (3) KHC 968), a Division Bench of this Court had held that where a member of a political party is aware of the decision taken by the political party, but had failed to act in accordance with the political directive, it would amount to voluntarily abandoning the membership of the political party and he would be disqualified under section 3(1)of the Act. 19. The contentions advanced by Adv. Nandagopal S.Kurup, are contradicted by the above extracted admissions itself. It is evident from the above admission that there was a direction issued by the Congress Party which was known to the first respondent regarding the voting for the election for the post of the President, which was not followed by him. Apart from the above, the first respondent stood as a candidate of the LDF for the post of Vice-President, that too, as a rival to his own party’s candidate and further, by his conduct, the UDF lost the governance of the Grama Panchayat. His knowledge of the directives of his political party have been admitted by him. Therefore, even if the whip allegedly issued was not properly served on the first respondent as per law, that does not detract from the obligation of the elected member to abide by the directions issued by the political party under whose banner he was elected. W.P.(C) No.22501 of 2023 12 20. In this context, reference to the decision in **Shajahan v. Chathannoor Grama Panchayat and Others** (ILR 2001 (1) Ker. 111) is also relevant. In the said case, though, the Election Commission accepted the contention of the petitioner that no whip was issued by the party to him, this Court held that, from the conduct and the evidence adduced therein, the petitioner therein had voluntarily given up his membership. After referring to the words used in the section; the Court relied upon the decision in **Ravi S. Naik v. Union of India and Others** (AIR 1994 SC 1558) and held that the words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. 21. The objective of the Act is to disqualify a member not only because he has violated the whip but also when he has voluntarily given up membership of the party. Disqualification for voluntary giving up of membership is different from violating the whip. The mode of communication of a party’s decision regarding its candidate for an election is not by issuing a whip. The very circumstance of the first respondent getting nominated by a member of the opposite coalition and thereafter, based on such a nomination, standing as a rival candidate to the candidate nominated by one of his own coalition members by itself is a conduct indicating voluntary giving up of membership in the political party under whose banner he was elected. In view of the above discussion, the impugned order of the Election Commission is perverse W.P.(C) No.22501 of 2023 13 and is liable to be set aside. 22. Hence, the order of the Kerala State Election Commission dated 15-06-2023 in O.P. No.1 of 2021 is hereby set aside and the election petition filed by the petitioner against the first respondent is allowed. It is declared that the first respondent has become disqualified under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, by committing defection and is disqualified to continue as a member of the Mannar Grama Panchayat. The writ petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM W.P.(C) No.22501 of 2023 14 ## **APPENDIX OF WP(C) 22501/2023** **PETITIONER'S EXHIBITS :** **Exhibit P1** **A TRUE COPY OF THE MEMORANDUM OF PETITION IN OP NO: 1/2021 FILED BY THE WRIT PETITIONER BEFORE THE 2ND RESPONDENT** - **Exhibit P2 A TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN OP 1/2021 BEFORE THE 2ND RESPONDENT** - **Exhibit P3 A TRUE COPY OF THE DEPOSITION OF THE WRIT PETITIONER (PW1) TENDERED BEFORE THE 2ND RESPONDENT IN OP 1/2021** - **Exhibit P4 A TRUE COPY OF DECLARATION GIVEN BY THE 1ST RESPONDENT IN FORM NO: 2 BEFORE THE SECRETARY OF THE GRAMA PANCHAYATH (EXHIBIT A1 BEFORE 2ND RESPONDENT)** - **Exhibit P5 A TRUE COPY OF REGISTER OF THE GRAMA PANCHAYATH SHOWING THE POLITICAL RELATION OF THE 1ST RESPONDENT (EXHIBIT A2 BEFORE 2ND RESPONDENT)** **Exhibit P6 A TRUE COPY OF WHIP WHICH WAS MARKED AS EXHIBIT A4 BEFORE 2ND RESPONDENT** - **Exhibit P7 A TRUE COPY OF MINUTES OF THE MEETING HELD ON 30.12.2020 FOR ELECTION OF THE POST OF PRESIDENT (WHICH IS MARKED AS EXHIBIT A6 BEFORE 2ND RESPONDENT)** **Exhibit P8 A TRUE COPY OF MINUTES OF THE MEETING HELD ON 30.12.2020 FOR ELECTION OF THE POST OF VICE PRESIDENT (WHICH IS MARKED AS EXHIBIT A7 BEFORE 2ND RESPONDENT) Exhibit P9 A TRUE COPY OF THE DEPOSITION OF PW2 IN OP 1/2021 Exhibit P10 A TRUE COPY OF THE DEPOSITION OF PW3 IN OP 1/2021** W.P.(C) No.22501 of 2023 15 ## **Exhibit P11** **A TRUE COPY OF DOCUMENT DATED 29.12.2020 MARKED AS EXHIBIT X1 BEFORE THE 2ND RESPONDENT** **Exhibit P12** **A TRUE COPY OF THE DEPOSITION OF RW1 IN OP 1/2021** **Exhibit P13** - **A TRUE COPY OF THE DEPOSITION OF RW2 IN OP 1/2021** **Exhibit P14 A TRUE COPY OF THE DEPOSITION OF RW3 IN OP 1/2021** **Exhibit P15 A TRUE COPY OF THE ORDER DATED 02.08.2022 IN OP NO: 1/2022 PASSED BY THE 2ND RESPONDENT** - **Exhibit P16 A TRUE COPY OF THE JUDGMENT DATED 02.05.2023 IN WP(C) NO. 27667/2022 PASSED BY THE HONOURABLE HIGH COURT OF KERALA** **Exhibit P17** **A TRUE COPY OF THE ORDER DATED 15.06.2023 IN OP NO: 01/2021 PASSED BY THE 2ND RESPONDENT**