Syamala Rajan v. Kerala State Election Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939 WA.No. 2077 of 2017 IN WPC. 14973/2011 AGAINST THE JUDGMENT IN WP(C) 14973/2011 of HIGH COURT OF KERALA DT.26/7/17 ------ ## APPELLANT/PETITIONER SYAMALA RAJAN, WIFE OF P.T. RAJAN, MEMBER, WARD NO. 11, EDATHUA GRAMA PANCHAYAT, KUTTANAD, ALAPPUZHA, NOW RESIDING AT EDATHUA GRAMA PANCHAYAT, KUTTANAD, ALAPPUZHA DISTRICT. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SMT.ASHA BABU RESPONDENTS/RESPONDENTS: ----------------------------------1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM-695001. 2. SHRI. K.N.P. KURUP, MEMBER, WARD NO.2, EDATHUA GRAMA PANCHAYAT, KUTTANAD, ALAPPUZHA-679 533, RESIDING AT NANDANAM, THAYANKARI P.O, KUTTANAD, ALAPPUZHA DISTRICT.-689722. 3. THE EDATHUA GRAMA PANCHAYAT, KUTTANAD, ALAPPUZHA DISTRICT, PIN-679 533. BY SRI.S.SHANAVAS KHAN BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM BY SRI.B.VINOD THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J.** ------------------------------------------------ W. A. No.2077 of 2017 -----------------------------------------------Dated this the 31[st ] day of January, 2018 ## **JUDGMENT** ## **Antony Dominic, Ag. C.J.** This appeal arises from the judgment dismissing W.P.(C) No.14973 of 2011, filed by the appellant challenging Ext.P3 order passed by the Kerala State Election Commission. 2. Briefly sated the facts of the case are that, in the year 2005, the appellant contested election to the Edathua Grama Panchayat as a candidate sponsored by the Communist Party of India (Marxist) and got elected. In the meeting of the Left Democratic Front (LDF), of which CPI(M) is a constituent, it was decided that the second respondent, Sri.K.N.P. Kurup, should be elected as the President of the Panchayat. It was also decided to share Presidentship with Kerala Congress (J), another constituent of the LDF. The W. A. No.2077 of 2017 -2- decision was that the initial two years, the nominee of CPI(M), the next two years, the nominee of Kerala Congress (J) and the last one year, again by the nominee of CPI(M), shall be the President. The parties shared the initial two years each without any hurdle. For the last year, it was decided by the LDF to elect the second respondent as the President. The proceedings show that, all CPI(M) and LDF members were given instructions to vote in favour of the second respondent. Ignoring the aforesaid direction, the appellant voted for a candidate sponsored by the United Democratic Front, a rival political front. Alleging that the respondent has voluntarily given up her membership in the political party and the LDF, to which she belonged to, the second respondent filed O.P. No.14 of 2010 before the Election Commission. The Election Commission considered the matter and passed Ext.P3 order, holding that the appellant had committed defection by voluntarily giving up -3- W. A. No.2077 of 2017 her membership in the political party which had set her up as a candidate and won the election. On that basis, it was further held that she incurred disqualification as provided under Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short the “KLA Act”); and that she was disqualified from contesting election to the Local Body for a period of six years from 21.05.2011, the date on which Ext.P3 order was passed. It was challenging this order, the appellant filed the writ petition. 3. While admitting the writ petition, this Court granted stay of the impugned order. It appears that the term of the appellant expired and she contested the subsequent elections, including the election held in 2015. The writ petition was dismissed and hence this appeal. 4. We heard the learned Senior Counsel appearing for the appellant, learned Standing Counsel appearing for the first respondent, learned counsel appearing for the -4- W. A. No.2077 of 2017 second respondent and also the learned counsel appearing for the third respondent Panchayat. 5. The first contention raised by the learned Senior Counsel for the appellant was that in the 2015 election, the appellant contested and won. According to the learned counsel, in view of the order of stay passed by this Court, her nomination having been accepted and she having successfully contested the election and became a member of the Panchayat, she could be disqualified from such membership, only under the provisions of the Kerala Panchayat Raj Act, 1994 (for short, the KPR Act”) and not by any other method. In other words, the contention raised is that not having invoked the procedure prescribed under the provisions of the KPR Act, either to challenge the candidature of the appellant or to get her election annulled, the dismissal of the writ petition cannot, in any manner, affect the acceptance of her nomination or the result of the W. A. No.2077 of 2017 -5- election, entitling the appellant to complete the term. 6. Secondly, the learned Senior Counsel contended that the finding of the Election Commission, as upheld by the learned single Judge, that the appellant had given up her membership in the political party or the political front for casting her vote to the candidate sponsored by the rival political coalition, is illegal. 7. Both these contentions were contradicted by the learned counsel appearing for the contesting respondents. 8. Section 34 of the KPR Act provides for disqualification of candidates and sub-section (kk) provides that a person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he has been disqualified as per the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 and has not completed six years from the date of disqualification. Section 35 of KPR Act provides for disqualification of members and -6- W. A. No.2077 of 2017 under sub-section (l), a member shall cease to hold office as such, if he is disqualified under any provisions of the Constitution or under any law for the time being in force for the purpose of election to the Legislature of the State. Subsection (n) also provides that a member shall cease to hold office as such, if he has been disqualified under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 9. It is argued that the power to disqualify a candidate and a member has been conferred by these provisions exclusively on the Election Commission. According to the learned Senior Counsel, nobody has moved the Election Commission either under Section 35 or under Section 36 of the KPR Act and that in the absence of the Election Commission having disqualified the appellant, the dismissal of the writ petition, cannot, in any manner, affect the right of the appellant to continue as member of the W. A. No.2077 of 2017 -7- Panchayat for the rest of the term. 10. Having considered the submissions made, we confess our inability to accept the plea. It is the admitted case of the parties that by its order dated 21.05.2011, the Election Commission declared that the appellant incurred disqualification under Section 3 of the KLA Act and is disqualified to contest as a candidate in the election to any local authority for a period of six years from the date of the order, as provided under Section 4(3) of the KLA Act. 11. A reading of Section 3(1)(a) of the KLA Act shows that notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994, or in any other law for the time being in force, subject to the other provisions of this Act, if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, he shall be disqualified for being a member of that local authority. Section (4) of the KLA Act deals with the decision -8- W. A. No.2077 of 2017 on question as to disqualification on the ground of defection. Under sub-section (1), it is provided that if any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of the Act, a member of that local authority or the political party concerned or a person authorised by it in that behalf, may file a petition before the State Election Commission for its decision. Sub-section (3) provides that where the 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 six years from that date. 12. Therefore, the statutory prohibition is that if a person is found to have become disqualified under Section 4(2) of the KLA Act, he is bound to suffer disqualification for contesting as a candidate in an election to any local -9- W. A. No.2077 of 2017 authority for six years from the date on which the order is passed by the Election Commission. So reckoned, the appellant having suffered disqualification for six years from 21.05.2011, the date on which Ext.P3 order was passed, that disqualification continued until 20.05.2017. When the appellant challenged Ext.P3 order, this Court passed order dated 06.06.2011, whereby it was ordered that there will be an interim order of stay of operation and implementation of Ext.P3 for a period of three weeks and the order was extended thereafter. It was on the strength of this interim order passed by this Court that the appellant submitted her nomination in the election that was held in 2015. According to the learned Senior Counsel for the appellant, although objections were raised against acceptance of her nomination, those were overruled by the Returning Officer and accordingly, she contested the election and won. 13. Now, question to be considered is, what is the -10- W. A. No.2077 of 2017 consequence on her membership, once the writ petition is dismissed. This question can be answered only by answering the further question as to what is the effect of the dismissal of the writ petition on the interim order passed by this Court. This issue has already been considered by the Apex Court and also this Court. The law is trite that an order of stay granted pending disposal of the writ petition, suit or other proceedings, comes to an end with the termination of the main proceedings and that it is the duty of the court then to put the parties to the same position they would have been but for the interim order of the court. Or else, that would amount to rewarding the petitioner despite his failure. This very issue has been discussed in detail with reference to the judgments of the Apex Court in **Aniyan v. M. (Prof.) v. University of Calicut and Another [2017 KHC 400]** , where it has been held thus: “17. What is the Effect of an Interim Order? -11- W. A. No.2077 of 2017 An order of stay granted pending disposal of a writ petition, suit, or other proceedings comes to an end with the main proceedings. It is the duty of the court, then, to put the parties in the same position they would have been but for the interim order of the court. Any other view, according to the Supreme Court in State of Gujarat v. Dilipbhai Shaligram Patil, 2006 KHC 1502 : 2006 (8) SCC 72 : AIR 2006 SC 3091 : 2006 SCC (L&S) 1802 : 2006 (4) LLN 212 : 2006 (46) AIC 119 : 2007 (103) Cut LT 22 would inflict hardship on the successful party for no fault of his; it would also amount to rewarding the writ petitioner despite his failure. Any such unjust consequence cannot be countenanced by the courts. On this proposition, Dilipbhai Shaligram Patil quotes with approval Kanoria Chemicals and Industries Ltd. v. U.P. SEB., 1997 KHC 1387 : 1997 (5) SCC 772 : JT 1997 (3) SC 545 : 1997 (2) SCALE 719 : 1997 (2) SCR 844 : 1997 (1) UJ 620. 18. But two contingencies must be distinguished: quashing of an order and staying of that order. In Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., 1992 KHC 854 : 1992 (3) SCC 1 : AIR 1992 SC 1439 the Supreme Court has held that quashing of an order restores the position that had existed before the quashed order was passed. Staying the operation of an order, however, does not lead to that result. It only means that the order stayed would not be operative from the date of stay. And it does not mean that the order has been wiped out from existence. -12- W. A. No.2077 of 2017 19. We cannot be unmindful that a court grants an interim order to preserve the lis and to protect the suitor's right from getting nullified because of the lis pendence developments. The order's legitimacy and survival depend on the eventual outcome of the principal proceedings. It aims at, pure and simple, preserving status quo ante. An interim order is the tail that cannot be allowed to wag the whole body, so to say. 20. The UP Electricity Board revised the electricity rates. The notification provided for imposing on the consumer statutorily permitted interest if it did not pay on time the bill raised at the revised rates. The consumer obtained a stay from the High Court of Allahabad: The operation of the notification remained stayed. The Board was restrained from realising the billed amount at the revised rates. The consumer was ordered to continue paying at the old rate. Eventually the writ petition dismissed, the Board demanded "late payment charges" from the consumer. The consumer once again approached the High Court; this time questioning the late-payment charges. The contention was obvious: The consumer did not pay the amount 'on time' because the very notification stood suspended until the earlier writ petition was dismissed. A Division Bench of the Allahabad High Court rejected the consumer's plea. The matter, then, was taken to Supreme Court. 21. In Kanoria Chemicals and Industries Ltd. v. -13- W. A. No.2077 of 2017 U.P. SEB, 1997 KHC 1387 : 1997 (5) SCC 772 : JT 1997 (3) SC 545 : 1997 (2) SCALE 719 : 1997 (2) SCR 844 : 1997 (1) UJ 620 at page 777 the Supreme Court has held: As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. It is baffling how the enhanced rates can be said to be payable but not the latepayment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification--the operation of which was stayed. It eventually held that the consumer must pay the late-payment charges. In the peculiar circumstances of that case, the Court reduced the amount, though. 22. To sum up, I may reiterate a truism that an interim order merges with the principal order. If at all the substantive lis ends in dismissal, it should be concluded, by legal fiction, as if the litigant had had no favourable order at any time. No benefit accrued. The Courts have consistently disapproved a suitor's effort to take advantage of an interim order and retain a benefit despite his losing the very cause on the merits, eventually. An interim order, then, is at the suitor's risk.” 14. In the light of the aforesaid legal principles, necessarily the appellant should be put back to the position -14- W. A. No.2077 of 2017 where she would have been, had there been no interim order of this Court. If so placed, necessarily, the acceptance of the nomination of the appellant, her candidature in the election and the results declared will have to be undone. Only if it is so done, the disqualification ordered by the Election Commission, by its order dated 21.05.2011 would run its course. We, therefore, reject the first contention of the learned Senior Counsel for the appellant and hold that on the dismissal of the writ petition, the appellant stood disqualified even on the date of acceptance of her nomination in the election and that consequences thereof should follow. 15. Now, turning to the merits, the other question that is raised and to be considered is whether, the finding of the Election Commission that the appellant had voluntarily given up her membership in the political party is tenable. As we have already stated, the fact that the appellant won the W. A. No.2077 of 2017 -15- election as a candidate of the Communist Party of India (Marxist) is undisputed. It is also not disputed that contrary to the decision of the party, the appellant voted to a candidate sponsored by the United Democratic Front, a rival political coalition. Question is whether, this conduct of the appellant would amount to voluntarily giving up her membership of the political party which sponsored the appellant as a candidate for the election. According to us, in the light of the Judgment of this Court in **Nazeerkhan S. v. Kerala State Election Commission and Another [2008 (3) KHC 322]** and the judgment of the Apex Court in **Ravi S. Naik v. Union of India [1994 KHC 633]** , this contention has to be answered against the appellant. In paragraphs 19 to 23 of the judgment in **Nazeerkhan** (supra), this Court held thus: “19. The question is whether on the aforesaid undisputed facts, which were pleaded in Ext. P1 petition, the 1st respondent was justified in -16- W. A. No.2077 of 2017 disqualifying the petitioner on the finding that by his conduct he had voluntarily given up membership of his political party. The learned counsel for the 2nd respondent relied on the judgment of the Apex Court in Ravi S. Naik v. Union of India 1994 KHC 633 :AIR 1994 SC 1558 : 1994 Supp (2) SCC 641 in which a member of the Goa Legislative Assembly was held to have voluntarily given up membership of his party. A reading of paragraph 26 of the judgment shows that the conduct of the appellant therein of having met the Governor in the company of MLAs. belonging to Congress was not in dispute and the only dispute was whether from the said conduct of the appellants an inference of having voluntarily given up their membership in the MGP could be drawn. The contention that the provisions of the Act proceed on the premise that political propriety and morality demand that after the election, if a person changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate, was accepted by the Apex Court and the finding that by his conduct, the Member had voluntarily given up his membership of his political party was upheld. 20. The learned counsel for the 2nd respondent also relied on Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council (2004) KHC 1646 : AIR 2005 SC 69 : 2004 (8) SCC 747), wherein at para 11, taking note of the fact that the Chairman of the Legislative Council had held that the petitioner therein had been elected to the Legislative Council on the ticket of Indian National Congress, but he -17- W. A. No.2077 of 2017 contested the parliamentary election as an independent candidate, the conclusion that he had given up his membership in the Indian National Congress was upheld by the Apex Court. Proceeding further it has been held : "This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under Paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct." Thereafter, it was held that the purpose of the rule was only that the necessary facts on account of which a member becomes disqualified for being a member of the House may be brought to the notice of the Chairman, that there is no lis between the person moving the petition and the member of the House who is alleged to have incurred the disqualification and that it is not an adversorial kind of litigation. Proceeding further, it was held that even if the petition is withdrawn it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. 21. From a reading of the law laid down by the Apex Court in the above two judgments, it is clear that what is required is that the facts which attract disqualification of a member should be disclosed in the petition and the person against whom such -18- W. A. No.2077 of 2017 allegations are made should have notice of such facts. From the conduct of the member if it is possible to draw an inference that he had voluntarily given up his membership of his political party, the authority is justified in passing an order disqualifying him. 22. In the judgment in Shajahan v. Chathannoor Grama Panchayat (2000 KHC 283 : ILR 2001 (1) Ker. 111 : 2000 (2) KLJ 451), this Court held that the expression "voluntarily giving up membership" has a wider meaning than resignation. It was held that a person may voluntarily give up his membership of a political party even though he would not have tendered his resignation and that even in the absence of a formal resignation an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. Following this judgment, on comparable facts, a Division Bench of this Court in its judgment in W.A. No. 2351/05 has held as follows: "However, the undisputed fact remains that the appellants candidature was proposed by a member of the rival coalition, namely, LDF and was also seconded by a member of the rival coalition, namely, LDF. That would mean that the appellant himself could not muster support from his own party members to propose him and second him as a candidate of their party. On the other hand, he readily accepted the nomination by proposal and seconding by the members of the rival coalition. We are of opinion that the same would certainly amount -19- W. A. No.2077 of 2017 to voluntary abandonment of the membership of his political party, in so far as he could have very well refused the support offered by the rival coalition members. After having accepted their support and contested against a candidate who was a member of his political party, he cannot now turn round and claim that he has not voluntarily abandoned the membership of his own political party." 23. Based on the evidence adduced the 1st respondent has found that the official candidate of the congress party was Sri.Kochukuttan Pillai. The undisputed facts show that the petitioners candidature was proposed by an independent member and was seconded by a member of the rival LDF. He won the election entirely on the votes of the LDF members and an independent member. He did not secure even a single vote from the members of Congress to which he belonged. It is in spite of all these that he is now contending that his conduct did not amount to voluntarily giving up of membership of his political party and that he did not have notice of the case against him. His conduct has been pleaded with sufficient material particulars in Ext.P1 and he had notice of the facts based on which finding has been entered into. The 1st respondent has framed issues and the petitioner had opportunity to lead evidence also. In the adjudication, on the materials available, it has been rightly found that writ petitioner had voluntarily given up his membership. In my view, from the facts noticed above, the inference drawn from petitioners conduct that he had voluntarily given up membership of his political party is unassailable. W. A. No.2077 of 2017 -20- 16. This judgment was upheld by a Division Bench of this Court in **Nazeerkhan S. v. Kerala State Election Commission and Another [2009 (1) KHC 681]** . 17. In that view of the matter, necessarily, the order passed by the Election Commission and the judgment of the learned single Judge deserves to be confirmed. 18. However, the learned Senior Counsel for the appellant placed reliance on the judgment of this Court in **Chinnamma Varghese v. State Election Commission** **[2010 (3) KLT 426]** and contended that in the light of the law declared, the act of the appellant does not amount to voluntarily giving up the membership of the political party. However, this contention also deserves only to be rejected for the reason that the judgment in **Chinnamma Varghese** (supra) was clarified by the Division Bench of this Court in its judgment in W.A. No.1248 of 2011, holding that the case was decided not on the interpretation of the expression W. A. No.2077 of 2017 -21- 'voluntarily giving up the membership of a political party', but on the principle that the pleadings were wholly inadequate to establish the necessary cause of action that the candidate has suffered disqualification for the mere signing of a no-confidence motion against the President of the Panchayat belonging to her own party. Therefore, the judgment in **Chinnamma Varghese** (supra) cannot be relied on to sustain the case of the appellant. We, therefore, do not find any merit in this appeal. Therefore, it stands dismissed. Sd/- **ANTONY DOMINIC ACTING CHIEF JUSTICE** Sd/- **DAMA SESHADRI NAIDU JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.2077 of 2017 -22-