T. M. Shafi v. K.K. Valsaraj and The Kerala State Election Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **WP(C).No.20694 OF 2019(J)** ## **PETITIONER:** **T.M.SHAFI, S/O. MUHAMMED ALI, THALIKKAL VEEDU P.O., KARA KADHIYALAM, NEAR FISHERIES SCHOOL, KODUNGALLOOR, THRISSUR - 680 671.** **BY ADV. SRI.SUNIL JACOB JOSE** ## **RESPONDENTS:** - **1 K.K.VALSARAJ, S/O.KESAVAN, SECRETARY, CPI, THRISSUR DISTRICT COUNCIL, K.K. WARRIER SMARAKA MANDIRAM, THRISSUR DISTRICT - 680 001.** - **2 THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE STATE ELECTION COMMISSION, MUSEUM, THIRUVANANTHAPURAM - 695 033.** **BY ADVS. SMT.P.R.REENA** **SRI.RANJITH THAMPAN, SR. ADV. SMT.NALINI PURUSHOTHAMAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20694 OF 2019(J)** **-2-** ## **JUDGMENT** ## **Dated this the 10th day of November 2020** This writ petition was filed questioning Ext.P1 decision dated 17.07.2019 of the 2[nd] respondent-Kerala State Election Commission, Thiruvananthapuram. By the impugned decision, the petitioner is ordered to be disqualified for being a member of Edavilangu Grama Panchayat as per Section 3(1) (a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the Act) and also disqualified him from contesting as a candidate in an election to any local authorities for a period of six years from the date of decision i.e., 17.07.2019. 2. The petitioner-T.M.Shafi elected as a member of Edavilangu Grama Panchayat in the election held in November 2015. He contested the election and was elected as a candidate of the Communist Party of India (CPI). CPI was a part of coalition in LDF. Other constituent of the coalition is CPM. After the election the Left Democratic Front (LDF) formed the Panchayat board. An agreement was entered between constituents within LDF and as per that understanding the first **WP(C).No.20694 OF 2019(J)** **-3-** 2[1] /2 years the Presidentship would go to the nominee of CPI and the second half for the nominee of CPI(M). Similar understanding was there regarding the post of Vice President. Accordingly, CPI nominee was chosen as president and CPI(M) nominee was chosen as a Vice President for first term. The petitioner-T.M.Shafi became the president being the nominee of CPI for the first term. 3. On the expiry of the first term, the petitioner stepped down from the post of President of the Panchayath and the nominee of CPI(M) also stepped down from the post of Vice President as per the agreement. 4. Fresh election was scheduled on 13.03.2018 to elect the new president and Vice President. The election petition arose in the context of electing Vice President. Smt. Mini Thankappan was decided to be the candidate of CPI for the post of Vice President. The petitioner-T.M.Shafi admittedly, cast his vote in favour of the candidate of the rival party namely, Smt. Sajitha. Besides, he made the vote of another CPI member, Smt. Suma Valsan, as invalid. It is setting **WP(C).No.20694 OF 2019(J)** **-4-** out these allegations, CPI approached the Election Commission to disqualify the petitioner-T.M.Shafi. 5. On analysis of the pleadings and evidence, the Election Commission came into a conclusion that the petitioner violated the directives of political party and liable to be disqualified him on the ground of defection as referable to the first limb of Section 3(1)(a) of the Act. The Election Commission found that there was no valid service of whip and therefore, disqualification as referable to the 2[nd] limb of Section 3(1)(a) of the Act is not attracted in this case. 6. This Court called upon the question to decide the validity of order of the Election Commission invoking its jurisdiction under article 226 of Constitution of India. 7. The finding of the facts rendered by the Election Commission are on following aspects: i. There was a meeting convened on 11.03.2018. In that meeting Smt.Mini Thankappan was nominated as an official candidate for the post of Vice President. ii. The petitioner-T.M.Shafi voted in favour of **WP(C).No.20694 OF 2019(J)** **-5-** Smt. Sajitha, a candidate of BJP, the rival political party in the election. iii. The petitioner also made the vote of Smt. Suma Valsan as invalid. The Court has to examine whether these findings are based on material facts or not. The Election Commission placed reliance on Exts. A1 to A2(a) to hold that in the meeting held on 11.03.2018, a decision was taken to nominate Smt. Mini Thankappan as the official candidate. Ext.A1 is the copy of the whip alleged to have been served to the petitioner. The Election Commission found that there was no valid service of whip. Therefore, Ext.A1 cannot be pressed into service. Exts.A2 and A2(a) are the minutes of the meeting. Much of the arguments have been now raised before this Court about the validity of the decision as entered in the minutes in regard to the nomination of Smt. Mini Thankappan. The Election Commission relied on the oral evidence of PWs1 to 3. They deposed before the Election Commission that in the meeting a decision was taken to nominate Smt. Mini Thankappan. The **WP(C).No.20694 OF 2019(J)** **-6-** petitioner's contention is that the decision to nominate Smt. Mini Thankappan was inserted subsequently. An act of forgery was committed by the members of local committee of CPI and therefore, without there being a substantial evidence to prove such decision was taken in the meeting, the Election Commission could not have placed reliance on such decision. The Election Commission's findings in this regard can be found in paragraph 21 which reads thus: _21. The respondent has a contention that only a portion of the minutes was recorded by him on that date and the decision regarding the candidature of Smt.Mini Thankappan was falsely incorporated in the minutes subsequently. The signature found at the end of Ext.A2(a) minutes is a forged one and it is not his signature. But the respondent has not filed any complaint regarding that before any authority even though a grave offence of forgery is alleged. There is no explanation also for that. Further on a mere comparison of the disputed signature with his admitted signatures in the vakalath, counter statement and deposition it can be seen that the disputed signature is similar to that of his admitted signature. Moreover there is no necessity for the District Secretary of the CPI to come before the Commission and say falsehood against the respondent. Evidence of PWs 1 to 3 would clearly show that the party has decided to filed Smt.Mini Thankappan as a candidate for the post of Vice President and I do not find anything to discard their evidence..…...._ 8. On appreciation of the evidence and the testimony of the witnesses the Election Commission came into a clear **WP(C).No.20694 OF 2019(J)** **-7-** conclusion that there was a meeting convened and a decision was taken to nominate Smt. Mini Thankappan. The above finding of facts cannot be over turned by this Court invoking power under article 226 of Constitution of India. Therefore, I am of the view that Smt. Mini Thankappan was the official candidate for the post of Vice President as nominated by the party. 9. The petitioner, admittedly, voted in favour of Smt.Sajitha, the BJP candidate. The petitioner has no case that Smt. Mini Thankappan is not a member of CPI. One cannot assume that a party member who cast vote against his own party by preferring a candidate of an opposite party is not acted against his own party. Therefore, it has to be concluded that T.M.Shafi voted consciously to defeat the candidate Smt. Mini Thankappan as the Vice President for the election. 10. Smt. Suma Valsan's vote was rendered as invalid. It was alleged by Smt. Suma Valsan that the petitioner made her vote as invalid. Smt. Suma Valsan also deposed this fact before the Election Commission. That would show, by an **WP(C).No.20694 OF 2019(J)** **-8-** overact on the part of the petitioner, he has caused the vote cast by his own party member as invalid. It is to be noted that by the action of the petitioner as above, Smt.Mini Thankappan was defeated in the election and the rival candidate Smt. Sajitha was elected as the Vice President. 11. The pleadings and evidence against the petitioner clearly would establish that the petitioner defied the directions of his party and acted against the interest of the party. This Court in **Chenthamara K. and others v. Kerala State Election Commission, Thiruvananthapuram and others [2015 KHC 7086]** held that a member of the party who act against the interest of the party deemed to have voluntarily given up his membership from his party. Similarly, in an another judgment of this Court rendered by the learned single judge in **Biju R.S. and Others v. Kerala State Election Commission and Others [2009 (2) KHC 839]** held that supporting no-confidence motion against a candidate of their own party member even in the absence of a whip amounts to voluntarily giving up the membership. A member elected through a party represent his **WP(C).No.20694 OF 2019(J)** **-9-** party. He must be loyal to his party in all circumstances. If anything done against the interest of the party that will attract the ground for disqualification for voluntarily giving up his membership of the party as contemplated under the first part of Section 3(1)(a) of the Act. The petitioner not only voted against his own party but also caused the vote cast by his own party member as invalid. That has been seriously taken by his party. If the party cannot condone the action of its member, it is not possible for the Election Commission to condone the same. In the result, I am of the view that the Election Commission is justified in its order disqualifying the petitioner as above. The writ petition is liable to be dismissed. Accordingly, it is dismissed. No costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** akv **WP(C).No.20694 OF 2019(J)** **-10-** ## **APPENDIX OF WP(C) 20694/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF THE ORDER DATED 17/07/19 OF THE 2ND RESPONDENT IN OP NO. 12/18.** - **EXHIBIT P2** - **PHOTOCOPY OF THE OP.NO.12/18 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER.** **EXHIBIT P4 PHOTOCOPY OF THE EXTRACT OF THE MINUTES BOOK OF THE MEETING HELD ON 11/03/18.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A COPY OF THE WHIP ISSUED TO THE PETITIONER DATED 11.03.2018.** - **EXHIBIT R1 B COPY OF COMPLAINT FILED BY SUMA VALSAN BEFORE THE DISTRICT COLLECTOR DATED 14.03.2018.** - **EXHIBIT R1 C TRUE COPY OF THE DECLARATION UNDER RULE 3(2) OF KERALA PANCHAYATH RAJ (CONDUCT OF ELECTION) RULES DATED 12.11.2015 SUBMITTED BEFORE THE SECRETARY OF THE PANCHAYATH.** **EXHIBIT R1 D COPY OF DEPOSITION OF SUMA VALSAN DATED 11.09.2018 IN OP.12/2018.** **//TRUE COPY// PA TO JUDGE**