Susan Alex v. Kerala State Election Commission and Others (WP(C).No.37496/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942** ## **WP(C).No.37496 OF 2016(J)** ## **PETITIONER:** # **SUSAN ALEX, LAHAYIL HOUSE, MANDIRAM PO, RANNY, PATHANAMTHITTA.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTION COMMISSION,**| |---|---| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**ANI VALIYAKALA, S/O. LATE V. T. ABRAHAM,**| ||**VALIYAKALAYIL HOUSE, ANGADI PO, RANNY,**| ||**PATHANAMTHITTA. 689 674.**| |**3**|**RANNY BLOCK PANCHAYAT, REPRESENTED BY ITS**| ||**SECRETARY, OFFICE OF THE RANNY BLOCK PANCHAYAT,**| ||**RANNY, PATHANAMTHITTA-689 672.**| |**4**|**PATHANAMTHITTA DISTRICT PANCHAYAT,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**DISTRICT PANCHAYAT OFFICE,**| ||**PATHANAMTHITTA-689 645.**| **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB SRI.VINAY M.E. SRI.MURALI PURUSHOTHAMAN SRI.VARGHESE M.EASO SRI.M.SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5.10.2020, THE COURT ON 14/10/2020 DELIVERED THE FOLLOWING:** ========================= W.P.(C).No.37496/2016 ## ~~~~~~~~~~~~~~~~~~~~~~~~~ ## Dated this the 14[th] day of October, 2020 ## J U D G M E N T This writ petition was filed by Susan Alex, who was a member of the Ranni Block Panchayat based on the election held in the year 2010. By order of the Election Commission dated 28.10.2016, she has been declared as disqualified for contesting as a candidate in an election to any local authority for a period of six years from the date of order of the State Election Commission. It is challenging this order Susan Alex approached this Court. Ext.P3 is the said order. 2. Shri Ani Valiyakala approached the State Election Commission to declare disqualification of Susan Alex on the ground of defection. 3. Susan Alex got elected to the Ranni Block Panchayat as a candidate of Kerala Congress (M). Kerala Congress (M) was part of United Democratic Front (UDF), a coalition. The coalition was constituent of Kerala Congress (M) and Indian National Congress. She was the lone candidate from Kerala Congress (M). UDF coalition won 7 seats which included the seat won by Susan Alex. There were 13 wards in Ranni Block Panchayat. Since UDF got majority seats, a W.P.(C).No.37496/2016 ## **-:3:-** candidate from the Congress became the President and Susan Alex was elected as the Vice President. 4. After 2[1] /2 years, the President nominated from the Congress resigned. The election was conducted for electing the new President. Susan Alex stood as a candidate for the post of President while holding the office of Vice President. Defying the whip given by UDF, Susan Alex stood for the post of President. The candidate nominated by the UDF was defeated in the election to the post of President. Susan Alex won the election with the support of rival Left Democratic Front (LDF). The election to the post of President was held on 23/6/2014. 5. Susan Alex continued as the President till 10/4/2015, the date on which she resigned from the post of President. 6. On 5/5/2015, the election to the new President was scheduled. The whip was issued by Kerala Congress (M) to Susan Alex to vote for Congress candidate, and this was on 2/5/2015. Defying whip, Susan Alex voted in favour of rival LDF. 7. Alleging that Susan Alex voluntarily gave up membership of political party which was part of the coalition and also on the ground that Susan Alex defied the whip, Ani Valiyakala, a member of W.P.(C).No.37496/2016 ## **-:4:-** Ranni Block Panchayat, who was elected along with Susan Alex and belonging to Indian National Congress approached the Election Commission for declaration as noted above. 8. Susan Alex denied issuance of the whip and also receipt of the whip. Susan Alex also alleged that the original petition filed by Ani Valiyakala was barred by limitation. 9. The Election Commission after going through the register showing the party affiliation of members of the Ranni Block Panchayat came to the conclusion that Susan Alex defied the whip and also voluntarily gave up membership of Kerala Congress (M). 10. Assailing the order of the Election Commission, the learned counsel for the petitioner argued that Ani Valiyakala failed to prove service of the whip as contemplated under Section 3(2) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 read with Rule 4(2) of the Rules framed under the Act. It is also submitted that cause of action alleged for filing petition for reliefs arose on 23/6/2014 when Susan Alex was elected as the President with the support of LDF, and the petition was filed only on 3/6/2015 without any application in support of the delay. Therefore, it was argued that the application was barred by limitation as prescribed under Rule 4A(2) of W.P.(C).No.37496/2016 ## **-:5:-** the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. This argument of limitation raised referring to the ground urged for disqualification for voluntarily giving up membership of the political party. 11. Rebutting this argument, the learned counsel for Ani Valiyakala submitted that Susan Alex never raised any dispute regarding non-service of the copy of whip to the Secretary of the Block Panchayat. It is submitted that since Election Commission was satisfied with the service of the whip of Susan Alex, this Court may not go beyond the findings so made in the impugned order. It is further argued by the learned counsel for Susan Alex that the choice of a political party to postpone the challenge to the disqualification cannot be questioned by a defected candidate. The cause of action that was invoked based on the whip issued for the election of the President on 5/5/2015 is a distinct cause of action. Therefore, when a distinct cause of action was available on the same ground, it is open for the political party or a member to choose anyone of such cause of action to approach the Election Commission. 12. Section 3(1)(a) based on which the Election Commission acted, refers disqualification on the ground of defection. It has two W.P.(C).No.37496/2016 ## **-:6:-** limbs. The first limb refers to disqualification on the ground of voluntarily giving up membership. The second limb refers to disobeying the whip issued by the authority authorised on this behalf. Though there is no period of limitation prescribed under the Act and Rules framed therein, Rule 4A(2) prescribed that the petition shall be filed within 30 days from the date of deemed disqualifications of the member. It is further stipulated under the proviso that on being satisfied with sufficient reasons for not filing the petition within the time limit specified, the Election Commission can accept the petition. There is no outer limit of the period of time for such satisfaction. 13. In the backdrop of facts and contention, three points arise for consideration. First, disqualification on the ground of voluntarily giving up membership; second, disqualification on the ground relatable to disobeying whip and; third is on the point of limitation. 14. Point 1: There are two instances on which grounds of disqualification relatable to voluntarily giving up membership arisen in this matter. At the first instance when Susan Alex defied the party and stood as a presidential candidate for election on 23/6/2014. She got elected as the President with the support of rival LDF member. This itself would establish a case for attracting a ground of W.P.(C).No.37496/2016 ## **-:7:-** disqualification for voluntarily giving up membership. However, no action was initiated based on a cause of action arose on 23/6/2014. She was thereafter expelled from the party. Thereafter, she resigned, and the election was held on 5/5/2015. Again a whip was issued on 2/5/2015. She defied the whip and voted in favour of the presidential candidate sponsored by LDF. This Court, in several judgments, had taken the view that voting contrary to the party direction, would amount to voluntarily giving up a membership of the said party. See the judgments in: **Muhammedkunhi v.Abdulla** [2010 (4) KLT 736], **Manoj Madhavasseril v. Kerala State Election Commission** [2018 (1) KLT 1047], **Rama Bhaskaran v. Kerala State Election Commission** [2018 (2) KLT 600] and **Chandran v. Kerala State Election Commission** [2019 (1) KLT SN 18(C.No.27)(DB)]. Therefore, it is clear that disobeying the whip on 2/5/2015 would amount to voluntarily giving up membership of the political party. The argument of Susan Alex since she was expelled as a member of Kerala Congress (M), and she was not bound by the whip is irrelevant in the light of the judgment of the Division Bench of this Court in **Surya Prakash and others v. Kerala State Election Commission, TVM and Others [2015 KHC 454]** . In that judgment, this Court held W.P.(C).No.37496/2016 ## **-:8:-** that merely because a person has been expelled, he does not cease to be a member of the political party as far as the local body is concerned. Therefore, I am of the view that Susan Alex has voluntarily given up membership to the political party so as to attract ground for defection under Section 3(1)(a) subject to the further decision on limitation. 15. Point 2: Susan Alex denied receipt of the whip. When there was a denial of issuance of the whip and receipt of the whip, it was the duty of Ani Valiyakala to prove the service of the whip in the manner referred under Section 3(2) read with Rule 4(2) of the Disqualification Rules. Section 3(2) states the direction of whip shall be in writing and be issued to the member as may be prescribed, and also a copy should be given to the Secretary of the LSGI concerned. Rule 4(2) states as follows: 4(2) 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 acknowledgement due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary. ## This Court in **George Elamplakkadu v. Mathew** [ **2020 (5) KLT 504]** had taken the view that service as above is mandatory. Therefore, it W.P.(C).No.37496/2016 ## **-:9:-** follows, there must be proof of service of the whip on the candidate as well as the Secretary to the LSGI concerned. As seen from the impugned order itself, Ani Valiyakala proved service of the whip only on Susan Alex. No evidence was adduced to prove effecting service on the Secretary. In the absence of proof of service as above, Election Commission could not have disqualified Susan Alex on the ground available in the second limb of Section 3(1)(a) relatable to disqualification, acting contrary to the issuance of the whip. 16. Point 3: The point to be considered is whether the petition filed by Ani Valiyakala was barred by limitation or not. As seen from the petition filed by Ani Valiyakala, he filed the petition based on the cause of action arose on 5/5/2015. In such circumstances, the question arises when a cause of action enured to initiate proceedings for disqualification on 23/6/2014, could Ani Valiyakala move an application for disqualification based on the subsequent cause of action or not. 17. The right to move a petition for disqualification is exclusively conferred on a political party or to the member of the Local Self Government Institution as seen from Rule 4A of the Rules. Two instances, on which a disqualification could have been moved ## W.P.(C).No.37496/2016 ## **-:10:-** against Susan Alex, arose in the matter. First, on 23/6/2014 and, second on 5/5/2015. If the political party or a member of the LSGI had not chosen to take action for disqualification at the first instance, it does not mean they had foreclosed the right to move the application when the cause of action arose subsequently. It is to be noted that each of the cause of action, in this case, is different and distinct. Cause of action means a set of facts which give rise to a claim. When Susan Alex contested as a President on 23/6/2014, that gave a cause of action for disqualification. That was not done. When Susan Alex disobeyed the whip on 5/5/2015, that also gave a separate cause of action. Based on this cause of action, the petition was filed on 3/6/2015. Reckoning the date of cause of action as 5/5/2015, the petition was within the time. When multiple cause of action have arisen during the tenure of a member, it is open for the aggrieved to file an application for disqualification based on any one of the cause of action available to him. It is always open for the political party to condone the action since the right to move the application for disqualification is exclusively given to the political party or to the member of the LSGI. It is their option or choice to seek disqualification of a defected member. Based on the second cause of W.P.(C).No.37496/2016 ## **-:11:-** action that arose on 5/5/2015, the application was within time. It is doubtful, the provision under Rule 4A(2) to be construed as a period of limitation. I am not adverting to those aspects for the simple reason that, it does not arise for consideration, as the application itself was filed within the time. As seen from the proceedings, no action was initiated based on a cause of action arose on 23/6/2014. Therefore, the application was within the time. In the light of the discussions as above, the writ petition is only to be dismissed. Accordingly, dismissed. No costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE ms ## W.P.(C).No.37496/2016 ## **-:12:-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT AS OP NO. 59/2015.** - **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER HEREIN IN OP NO. 59/2015.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28-10-2016 IN OP NO. 59/2015 OF THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 15-092014 ISSUED BY THE VICE CHAIRMAN OF KCM TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE INTIMATION SLIP ISSUED BY THE POSTAL DEPARTMENT TO THE PETITIONER ON 05-05-2015.** - **EXHIBIT P6 TRUE COPY OF THE CHIEF AFFIDAVIT DATED 31-05-2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R2(a): A TRUE COPY OF THE ORIGINAL PETITION FILED BEFORE THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **EXHIBIT R2(b): A TRUE COPY OF THE WRITTEN STATEMENT IN ORIGINAL PETITION FILED BEFORE THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **EXHIBIT R2(c):** - **A TRUE COPY OF THE DEPOSITION OF THE PW1 DATED 20/01/2016 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** W.P.(C).No.37496/2016 ## **-:13:-** **EXHIBIT R2(d):** **EXHIBIT R2(e):** **EXHIBIT R2(f):** **EXHIBIT R2(g):** **EXHIBIT R2(h):** **EXHIBIT R2(i):** **EXHIBIT R2(j):** **A TRUE COPY OF THE DEPOSITION OF THE PW2 DATED 10/05/2016 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **A TRUE COPY OF THE AFFIDAVIT OF THE RW1 DATED 31/05/2016 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **A TRUE COPY OF THE DEPOSITION OF THE RW1 DATED 31/05/2016 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **A TRUE COPY OF THE DEPOSITION OF THE RW2 DATED 13/07/2016 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** - **A TRUE COPY OF THE POLITICAL PARTY AFFILIATION REGISTER OF RANNI BLOCK PANCHAYATH MARKED AS EXT.P1 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **A TRUE COPY OF THE MINUTES OF PRESIDENT ELECTION MEETING OF RANNI BLOCK PANCHAYATH MARKED AS EXT.P2 DATED 08/11/2010 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM.** **A TRUE COPY OF THE MINUTES OF VICE PRESIDENT ELECTION MEETING OF RANNI BLOCK PANCHAYATH MARKED AS EXT.P2(a) DATED 08/11/2010 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP NO.59/2015.** W.P.(C).No.37496/2016 ## **-:14:-** **EXHIBIT R2(k): A TRUE COPY OF THE MINUTES OF PRESIDENT ELECTION MEETING OF RANNI BLOCK PANCHAYATH MARKED AS EXT.P3 DATED 23/06/2014 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(l): A TRUE COPY OF THE MINUTES OF VICE PRESIDENT ELECTION MEETING DATED 23/06/2014 OF RANNI BLOCK PANCHAYATH MARKED AS EXT.P4 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(m): A TRUE COPY OF THE NOTICE DATED 25/04/2015 BY THE RETURNING OFFICER FOR THE RANNI BLOCK PANCHAYATH PRESIDENT ELECTION MARKED AS EXT.P5 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(n): A TRUE COPY OF THE WHIP ISSUED BY THE PRESIDENT, DISTRICT CONGRES (I) COMMITTEE DATED 01/05/2015 TO THE 2ND RESPONDENT, WHICH IS MARKED AS EXT.P6 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(o): A TRUE COPY OF THE WHIP PASSED BY THE PRESIDENT, KERALA CONGRESS (M) ISSUED TO THE PETITIONER DATED 02/05/2015 WHICH IS MARKED AS EXT.P7 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** W.P.(C).No.37496/2016 **-:15:-** |**EXHIBIT R2(p):**|**A TRUE COPY OF THE POSTAL RECEIPT OF**| |---|---| ||**THE REGISTERED LETTER DATED 02/05/2015**| ||**ISSUED TO THE PETITIONER BY VICTOR**| ||**T.THOMAS, PRESIDENT KERALA CONGRESS (M)**| ||**DISTRICT COMMITTEE, PATHANAMTHITTA**| ||**WHICH IS MARKED AS EXT.P8 ON THE FILE**| ||**OF THE HON'BLE KERALA STATE ELECTION**| ||**COMMISSION AT THIRUVANANTHAPURAM IN**| ||**OP.NO.59/2015.**| |**EXHIBIT R2(q):**|**A TRUE COPY OF THE COURIER RECEIPT**| ||**DATED 02/05/2015 ISSUED TO THE**| ||**PETITIONER BY VICTOR.T.THOMAS,**| ||**PRESIDENT KERALA CONGRESS (M) DISTRICT**| ||**COMMITTEE, PATHANAMTHITTA WHICH IS**| ||**MARKED AS EXT.P9 ON THE FILE OF THE**| ||**HON'BLE KERALA STATE ELECTION**| ||**COMMISSION AT THIRUVANANTHAPURAM IN**| ||**OP.NO.59/2015.**| |**EXHIBIT R2(r):**|**A TRUE COPY OF THE MINUTES OF PRESIDENT**| ||**ELECTION MEETING DATED 05/05/2015 OF**| ||**THE RANNI BLOCK PANCHAYATH WHICH IS**| ||**MARKED AS P10 ON THE FILE OF THE**| ||**HON'BLE KERALA STATE ELECTION**| ||**COMMISSION AT THIRUVANANTHAPURAM IN**| ||**OP.NO.59/2015.**| |**EXHIBIT R2(s):**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**20/06/2015 ISSUED UNDER RT INFORMATION,**| ||**WHICH IS MARKED AS B1 ON THE FILE OF**| ||**THE HON'BLE KERALA STATE ELECTION**| ||**COMMISSION AT THIRUVANANTHAPURAM IN**| ||**OP.NO.59/2015.**| |**EXHIBIT R2(t):**|**A TRUE COPY OF THE ALLEGED LETTER DATED**| ||**15/09/2014 ISSUED BY THE VICE CHAIRMAN,**| ||**KERALA CONGRESS (M) WHICH IS MARKED AS**| ||**B2 ON THE FILE OF THE HON'BLE KERALA**| ||**STATE ELECTION COMMISSION AT**| ||**THIRUVANANTHAPURAM IN OP.NO.59/2015.**| W.P.(C).No.37496/2016 ## **-:16:-** **EXHIBIT R2(u):** **A TRUE COPY OF THE INTIMATION SLIP OF POSTAL DEPARTMENT DATED 05/05/2015 WHICH IS MARKED AS B3 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(v):** - **A TRUE COPY OF THE MALAYALA MANORAMA DAILY DATED 22/09/2014 WHICH IS MARKED AS B4 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** - **EXHIBIT R2(w): A TRUE COPY OF THE MALAYALA MANORAMA DAILY DATED 08/10/2014 WHICH IS MARKED AS B5 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(x):** - **A TRUE COPY OF THE RECEIPT AND DETAILS OF TELEPHONE CALL BSNL OF PETITIONER DATED 01/07/2015 WHICH IS MARKED AS B6 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(y):** - **A TRUE COPY OF THE AADHAR CARD OF THE PETITIONER WHICH IS MARKED AS B7 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.** **EXHIBIT R2(z):** - **A TRUE COPY OF THE ID PROOF OF THE PETITIONER WHICH IS MARKED AS B8 ON THE FILE OF THE HON'BLE KERALA STATE ELECTION COMMISSION AT THIRUVANANTHAPURAM IN OP.NO.59/2015.**