Sulaiman Chatheri v. Kerala State Election Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935** **WP(C).No. 28268 of 2013 (G) ----------------------------** **PETITIONER:** **------------** **SULAIMAN CHATHERI CHATHERI HOUSE, P.O.K.PURAM, TANALUR-676307 MALAPPURAM DISTRICT.** **BY ADV. SRI.K.K.MOHAMED RAVUF** **RESPONDENTS:** **----------------------------** **1. THE KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, CO-OPERATION OFFICE COMPLEX, L.M.S.JUNCTION, THIRUVANANTHAPURAM-695033.** **2. THE TALUK STATISTICAL OFFICER (RETURNING OFFICER) TIRUR-676101, MALAPPURAM DISTRICT.** **3. THE SECRETARY TANALUR GRAMA PANCHAYAT, TANALUR-676307 MALAPPURAM DISTRICT.** **4. MALEYEKKAL SUJATHA W/O.DEVARAJAN, MALEYEKKAL HOUSE, P.O.TANALUR-676307 MALAPPURAM DISTRICT.** **5. PULLUNI FATHIMA W/O.SAINUDHEEN, PULLUNI HOUSE, EAST MEENADATHUR P.O.TANALUR-676307, MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R4 and R5 SRI P C SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** ## **WP(C).No. 28268 of 2013 (G)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE SWORN DECLARATION GIVEN BY R4 TO R3.** **EXHIBIT P2 : TRUE COPY OF THE SWORN DECLARATION GIVEN BY R5 TO R3.** **EXHIBIT P3 : TRUE COPY OF THE STATUTORY WHIP ISSUED BY THE WHIP TO R4 DT.28-9-2013.** **EXHIBIT P4 : TRUE COPY OF THE STATUTORY WHIP ISSUED BY THE WHIP TO R5 DT.28-9-2013.** **EXHIBIT P5 : TRUE COPY OF THE LETTER GIVEN TO R3 DT.7-10-2013 BY THE MEMBERS.** - **EXHIBIT P6 : TRUE COPY OF THE COMMUNICATION DT.4-11-2013 ISSUED BY THE SECRETARY, TANUR BLOCK PANCHAYATH.** **EXHIBIT P7 : TRUE COPY OF THE NOTIFICATION DT.29-10-2013 ISSUED BY R1.** ## **RESPONDENT(S)' EXHIBITS** **----------------------------** ## **NIL** ## **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.28268 of 2013-G ---------------------------------------------------Dated this the 18[th] November, 2013** ## **J U D G M E N T** The petitioner, an elected Ward Member of the Tanalur Grama Panchayat, has filed this Writ Petition contending that respondents 4 and 5 have automatically entailed disqualification from their membership in the Panchayat by their various acts. 2. Respondents 4 and 5 were elected as members of the United Democratic Front (UDF) coalition, as evident from Exts.P1 and P2. As per Exts.P1 and P2, they have declared that they were persons belonging to the UDF coalition. There are 23 members in the Tanalur Grama Panchayat Council. 13 belong to the UDF while 10 belong to the Left Democratic Front (LDF). A No Confidence Motion had been moved against the President and the Vice President on 24.09.2013 by the LDF members. A Meeting had been convened on 07.10.13, for discussing the no confidence motion. On 28.09.13, one of the members was elected as the Party Whip. A Whip had been issued to all the members to vote against the No Confidence Motion. Respondents 4 and 5 received the Whip, Exts.P4 and P5. Thereafter, the No Confidence Motion was discussed at the **W.P(c) No.28268 of 2013-G** 2 meeting held on 17.10.2013 and was passed. The contention of the petitioner is that a letter given by respondents 4 and 5 on 07.10.2013 along with all the LDF members shows that they had supported the No Confidence Motion. As per Ext.P6, the Secretary of the Panchayat has informed the petitioner under the provisions of the Right to Information Act, 2005, that respondents 4 and 5 had voted in support of the No Confidence Motion. 3. Advocate Mohammed Ravuf, who appears for the petitioner, contends that by their conduct, respondents 4 and 5 have become automatically disqualified to continue as members of the Panchayat. Exts.P5 and P6 conclusively establish the culpable conduct on the part of respondents 4 and 5. In the face of such blatant violation of the law, it is not necessary to await an order of disqualification from the 1[st] respondent, the Election Commission. They can be declared to be automatically disqualified, under Article 226 of the Constitution. Reliance is placed on the opening words of Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as `the Act' for short). It is contended that in the present case there cannot be any dispute regarding the fact that **W.P(c) No.28268 of 2013-G** 3 respondents 4 and 5 stand automatically disqualified. Therefore, he seeks the issue of appropriate directions in this regard. 4. Advocate Murali Purushothaman appears for the 1[st] respondent. Advocate P.C.Sasidharan appears for respondents 4 and 5. 5. According to the learned counsel for the 1[st] respondent Sri Murali Purushothaman, another Writ petition, WP(c) No.26860 of 2013, relating to the same subject matter has already been disposed of by me as per judgment dated 07.11.2013. In the said judgment I have noticed that O.P.Nos.92 and 93 of 2013 seeking disqualification of respondents 4 and 5 are already pending consideration of the 1[st] respondent Election Commission. Therefore, I have directed the said petitions to be disposed of expeditiously. Consequently, a dispute relating to the eligibility of respondents 4 and 5 to continue as members of the Panchayat, is already in seizin of the 1[st] respondent, awaiting its decision. The learned counsel also places reliance on the decision of this Court in **Suresh v. Kerala State Election Commission** [2009(4) KLT 297] to contend that there is no automatic disqualification of a member 4 **W.P(c) No.28268 of 2013-G** and that, he would have to be disqualified by the 1[st] respondent. 6. Heard. Section 4 of the Act reads as follows: “4. Decision on question as to disqualification on ground of defection:-- (1) **If any question arises as to whether a member of a local authority has become subject to disqualification** under the provisions of this Act a member of that local authority or the political party concerned or a person authorised by it in this behalf may file a petition before the State Election Commission for decision. (2) The State Election Commission shall, after making such enquiry as it deems necessary, decide whether such member has become subject to such disqualification or not and its decision thereon shall be final. (3) Where the State Election Commission decides that a member has become subject to disqualification under sub-section (2), he shall cease to be a member from the date of such decision and shall be disqualified for contesting as a candidate in an election to any local authority for 6 years from that date.” (emphasis supplied) 7. The opening words, `if any question arises as to whether a member of the local authority has become subject to disqualification' refers to a situation where a dispute regarding 5 **W.P(c) No.28268 of 2013-G** the disqualification of a member of a local authority is pending. The contention of the learned counsel for the petitioner is that, in view of Ext.P5, which cannot be disputed by respondents 4 and 5, they have automatically entailed disqualification. The said contention can probably be accepted only in a situation where the party, who is alleged to have entailed the disqualification, does not dispute the same. In the present case, there are already two Original Petitions pending before the 1[st] respondent Election Commission which are being contested by respondents 4 and 5, as asserted by Sri P.C.Sasidharan, who appears for the said respondents. Therefore, there is dispute regarding the question as to whether respondents 4 and 5 have become disqualified or not and the said dispute is pending adjudication of the Kerala State Election Commission. In view of the above, this is not a case in which respondents 4 and 5 can be said to have entailed automatic disqualification as canvassed by the learned counsel for the petitioner. The counsel has placed reliance on a decision of this Court in **Dharma Mani v. Parassala Block Panchayat** [2009(3) KLT 29]. Particular reliance is placed on the following passage in para.12 of the said decision. 6 **W.P(c) No.28268 of 2013-G** “12. In **Rajendra Singh Rana & Ors. v. Swami Prasad Maurya & Ors.** ((2007) 4 SCC 270), a Constitution Bench of the Apex Court held that the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. It was held that the act that constitutes disqualification in terms of para.2 of the Tenth Schedule to the Constitution of India is the act of giving up the membership or defiance of the whip and that the fact that a decision in that regard may be taken in the case of voluntarily giving up, by the Speaker at a subsequent point of time, cannot and does not postpone the incurring of the disqualification by the act of the legislator.” 8. Though the nature of the contentions taken by respondents 4 and 5 have not been placed on record, the fact remains that the said respondents are contesting the allegation that they have become disqualified. Therefore, it is only in the fitness of things that the matter is considered by the 1[st] respondent and appropriate orders passed in the petitions, evaluating the evidence that may be adduced by the parties after affording them an opportunity to do so. 9. Apart from the above in **Suresh v. Kerala State** **W.P(c) No.28268 of 2013-G** 7 **Election Commission** (supra), Thottathil Radhakrishnan, J. has, while considering a similar issue, held in para.5 as follows: “The fact that there is no automatic disqualification of a member on the ground of defection is well settled by the decisions of this Court in **Jose Augustine v. State of Kerala** (AIR 1999 Ker.293) and **Thangal V.A.K. v. BDO & Ors.** (2007(3) KLT 561). This Court has also laid down in **C.M.Mustafa v. State Election Commission** (judgment dated 1.12.2003 in W.P(c) No.37014/2003) that a person accused of defection is entitled to act as a member of the Panchayat until the date of the order of the Commission declaring him as disqualified. That principle has been reiterated in **C.P.Hydrose v. Kerala State Election Commission** (judgment dated 19.1.2004 in W.P.(C) No.2047/2004) and in **V.C.Kuriakose v. Kerala State Election Commission** (judgment dated 10.1.2007 in W.P.(C) No.813/2007).” I am in respectful agreement with the said observation. 10. As already noticed above, in the present case, the allegation that respondents 4 and 5 have entailed disqualification is being disputed by them and contested in the proceedings before the 1[st] respondent Election Commission. Therefore, this is a case in which a question has arisen as to 8 ## **W.P(c) No.28268 of 2013-G** whether respondents 4 and 5 are disqualified or not, which is engaging the attention of the 1[st] respondent. No interference with the said proceedings at this stage is either necessary or called for. For the above reasons, I do not find any grounds to entertain this Writ Petition or to grant any of the reliefs sought for. This Writ Petition is therefore dismissed. _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/