T. L. Sabu v. Kerala State Election Commissioner and K. J. Devassia (W.P.(C).No.6172 of 2023)

W.P.(C).No.6172 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 WP(C) NO. 6172 OF 2023** ## **PETITIONER:** T.L. SABU AGED 54 YEARS S/O LUKA , THURUTHIYIL HOUSE, MULLUAKUNNU, SULTHAN BATHERY. P.O, WAYAND DISTRICT, PIN - 673592 BY ADV P.VISHNU PRASAD ## **RESPONDENTS:** 1 KERALA STATE ELECTION COMMISSIONER VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN - 695033 2 K.J.DEVASSIA S/O JOESPH, KANNUTHOTTIYIL HOUSE, SULTHAN BATHERY. P.O, WAYANAD DISTRICT, PIN - 673592 BY ADVS. SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA Sujith Mathew Jose THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 8.03.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING: W.P.(C).No.6172 of 2023 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.6172 of 2023 = = = = = = = = = = = = = = = = Dated this the 13[th] day of April, 2023** ## **JUDGMENT** 1.This writ petition is filed challenging Exhibit P9 order of the State Election Commission allowing O.P.No.18/2019 filed by the 2[nd] respondent. The O.P. had been filed under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as 'the Act') for declaring that the petitioner had defected and was hence disqualified to continue as Member of Sulthan Bathery Municipality. It is submitted that the petitioner had contested the local body elections as the Member of the “Kerala Congress(M)” with the election symbol “Two Leaves”. He was elected from Ward No.23 and was thereafter elected as Chairman of the Municipality with the support of the other elected members of the Left Democratic Front. While so, the Kerala Congress (M) took a policy decision to join the United Democratic Front W.P.(C).No.6172 of 2023 3 coalition. The petitioner was required to resign from the post of Chairman of the Municipality. The learned counsel for the petitioner submits that the decision of the Kerala Congress (M) District Committee that the petitioner should resign from the post of Chairman was not properly communicated to the petitioner, as provided in the Act and the Rules and that therefore the finding in Exhibit P9 that the petitioner had become disqualified is illegal and unsustainable. It is submitted that the petitioner had never received the written communication allegedly issued by the 2[nd] respondent. It is stated the petitioner's wife, who was examined as RW3, had denied her signature in the acknowledgment receipt Exhibit A5(a) produced before the 1[st] respondent. It is stated that the allegation that the petitioner had conducted a press meeting was also not proved in any manner known to law and that the order passed was, therefore, clearly illegal and unsupportable. - 2.The learned counsel for the petitioner places reliance on a decisions of this Court reported in **Manoj Madhavasseril v.** W.P.(C).No.6172 of 2023 4 **Kerala State Election Commission** [2018 (1) KLT 1047] to contend that when a member of a political party which forms part of a coalition acts contrary to the interest of the coalition a disqualification is not attracted under Section 3 of the Act and a decision in **George, Elamplakkadu @ Vakkachan Powathil v. A.V.Mathew @ Samkutty Vettupalam and others** [ 2020 (5) KHC 297] to contend that service of a copy of direction in writing to the Secretary is absolutely mandatory for a finding as to defection. 3.Referring to Section 3 of the Act, it is specifically contended that the Act as well as the Rules framed thereunder specifically provide for the service of the direction in writing to the member concerned in the manner prescribed and that a copy of such direction shall be given to the Secretary of the Local Self Government Institution concerned. It is, therefore, contended that the finding in Exhibit P9 to the effect that the petitioner had defected and had therefore incurred the disqualification is completely illegal. W.P.(C).No.6172 of 2023 5 4.The learned standing counsel appearing for the Commission submits that there are two specific limbs to the disqualification as provided in Section 3. Section 3(1)(a) provides that if a member of a 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 belongs votes or abstain from voting as directed by the political party, he incurs the disqualification of defection. It is submitted that it is only in the case of the 2[nd] limb that is, acting in a manner contrary to any direction in writing issued by the political party that the question of service of the direction in writing becomes relevant. It is submitted that in the instant case the question is of voluntarily giving up of the membership of the party. It is submitted that the petitioner, who had contested the election as a member of the Kerala Congress (M) had been directed to resign from the post of Chairman of the Municipality which he occupied on account of his membership in the said political party. The political party had left the coalition and had directed the petitioner to resign from the W.P.(C).No.6172 of 2023 6 post of Chairman on his refusal to do so, he had acted contrary to the directions and interest of the political to which he belongs and had therefore incurred the disqualification of voluntarily giving up of membership in the political party. It is submitted that this is the finding in the judgment under challenge and that therefore the other contentions raised by the petitioner with regard to mode of service of the communication which are applicable only in a case where a whip is involved are completely irrelevant. The learned standing counsel also relies on the decisions of this Court in **Faisal P.A v. K.A.Abdulla Kunhi and Another** [2008(3) KHC 26] and **Shameena Ibrahimkutty and others v. Kerala State Election Commission and Another** [2020(6) KHC 354]. 5.Having considered the contentions advanced on either side, I notice that the allegations as raised in Exhibit P1 petition against the petitioner were specifically with regard to his voluntarily giving up of membership in the political party on the banner on which he was elected as Chairman of the Municipality. The petitioner does not deny any of the W.P.(C).No.6172 of 2023 7 foundational facts that is, that he was a member of the Kerala Congress(M), that the Kerala Congress (M) was part of the LDF coalition at the time of the election, that the Kerala Congress (M) had left the coalition and that he was required to resign from the post of Chairman which he occupied on the basis of his membership in the political party and that he had refused to do. 6.Section 3(1)(a) of the Act reads as follows:- “3.Disqualification on ground of Defection.(1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act, (a) 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 a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting,- (i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or (ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee; or the W.P.(C).No.6172 of 2023 8 Chairman of the Standing Committee; or in an voting on a noconfidence motion against any one of them except a member of a Standing Committee.” 7.This Court in **Shameena Ibrahimkutty and others v. Kerala State Election Commission and Another** [2020(6) KHC 364] held that where there is a direction issued by a political party to a person, who has contested the elections as a member of the same to step down from any post and if the said direction is not obeyed, that would attract the 1[st] limb of Section 3(1)(a) relating to voluntarily giving up of membership and that it is only where the 2[nd] limb is invoked that the mode of communication of the whip would become relevant. 8.In **Faisal P.A. v. Abdulla Kunhi and Another** [2008 (3) KHC 267] also this Court specifically considered the issue of voluntarily giving up of membership and held that a person who, by his conduct defies the party directives and voluntarily abadons his party membership is liable to be disqualified by the Election Commission on the ground of defection. 9 W.P.(C).No.6172 of 2023 9.The decisions relied on by the learned counsel for the petitioner are with regard to the mode of the serving of a direction in writing (Whip) which forms the 2[nd] limb of Section 3(1)(a). In the above view of the matter and in view of the fact that it was these facts which were considered in Exhibit P9 to find that the petitioner had incurred the disqualification of defection, I am of the view that the challenge against Exhibit P9 on the grounds raised by the petitioner cannot succeed. The writ petition fails and the same is accordingly dismissed. **==> picture [23 x 11] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.6172 of 2023 10 ## **APPENDIX OF WP(C) 6172/2023** PETITIONER EXHIBITS - Exhibit1 TRUE COPY OF THE O.P NO: 18/2019 DATED 12.04.2019 FILED BEFORE THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM - Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN DATED 18/6/19 - Exhibit P3 TRUE COPY OF THE JUDGMENT IN W.P(C) 27844/2019 DATED 18.10.2019 - Exhibit P4 TRUE COPY OF THE CHIEF AFFIDAVIT AND DEPOSITION OF 2ND RESPONDENT - Exhibit P5 TRUE COPY OF THE CHIEF AFFIDAVIT AND DEPOSITION OF THE PETITIONER Exhibit P6 THE TRUE COPY OF THE DEPOSITION OF RW-3 IN OP 18/2019 BEFORE THE 1ST RESPONDENT - Exhibit P7 8. THE TRUE COPY OF THE ALLEGED WHIP DATED 02.04.2019 ALLEGED TO HAVE BEEN ISSUED BY THE 2ND RESPONDENT WHICH WAS PRODUCED AS A-5 BEFORE 1ST RESPONDEN Exhibit P8 THE TRUE COPY OF SECOND WHIP DATED 05.04.2019 ALLEGED TO HAVE BEEN ISSUED BY 2ND RESPONDENT WHICH WAS PRODUCED AS A-6 Exhibit P9 TRUE COPY OF THE ORDER DATED 17.01.2023 True copy PS to Judge