Tissy M.K. @ Tissy Binu v. State Election Commission, Kerala and P.T. Eldo

W.P.(C).No.8242/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** ## **WP(C) NO. 8242 OF 2022** ## **PETITIONER:** TISSY M.K. @ TISSY BINU AGED 37 YEARS WIFE OF BINU, AGED 37 YEARS, THOPPIL HOUSE, PETITIONER RAJAKUMARY SOUTH POST, IDUKKI DISTRICT, PIN - 685619 BY ADVS. P.K.RAVISANKAR M.K.THANKAPPAN ## **RESPONDENTS:** 1 STATE ELECTION COMMISSION, KERALA VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033 2 P.T. ELDO AGED 60 YEARS SON OF VARGHESE, PALAL, KULAPARACHAL POST, IDUKKI DISTRICT, PIN - 685619 BY ADVS. SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA SANTHOSH MATHEW ARUN THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON 21.03.2022 DELIVERED THE FOLLOWING: W.P.(C).No.8242/22 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.8242 of 2022** **= = = = = = = = = = = = = = = = Dated this the 21[st] day of March, 2022** ## **JUDGMENT** - 1.This writ petition is filed with the following prayer:- “Call for the records leading to Exhibit P10 and issue a writ in the nature of certiorari, order or direction quashing Exhibit P10.” - 2.Heard Sri.Ravi Sankar, the learned counsel for the petitioner, Sri.Deepulal Mohan, the learned standing counsel appearing for the 1[st] respondent and the learned counsel appearing for the 2[nd] respondent. - 3.It is submitted by the learned counsel for the petitioner that the petitioner had contested the elections to the Local Self Government Institutions in November 2015. She was elected to Ward No.10 of Rajakumari Grama Panchayat as official candidate of Indian National Congress. She was elected as President of the Panchayat and she resigned from the post of President in November, 2018. The President elected thereafter also resigned and election to the post of President of the W.P.(C).No.8242/22 3 Panchayat was scheduled to be held on 17.9.2019. The petitioner contends that she contested the election as a candidate of the Indian National Congress and she was declared elected defeating the candidate belonging to Kerala Congress (M). The 2[nd] respondent, who was elected from Ward No.9 in the 2015 elections filed O.P.No.31 of 2019 before the 1[st] respondent alleging that the petitioner contested election to the post of President on 17.9.2019 in violation of the whip issued by the President of the Idukki District Congress Committee and thereby voluntarily abandoned membership in the Indian National Congress. The petitioner submitted objections stating that the petitioner had contested the election as the candidate of the Indian National Congress and that she had neither voluntarily abandoned membership in the Indian National Congress nor had committed any act of defection as alleged. Considering the contentions and the evidence recorded, Exhibit P10 order was passed by the 1[st] respondent holding that there was a whip issued on 17.9.2019, which was violated by the petitioner and that therefore she was disqualified in terms of Rule 3 and 4 of the Kerala Local W.P.(C).No.8242/22 4 Authorities (Disqualification of Defected Members) Rules, 2000. 4.The learned counsel for the petitioner submits that there was no finding in Exhibit P10 that the whip was duly served on the Secretary of the Panchayat or that the whip had been duly issued and served on the petitioner. It is further submitted that the petitioner's contention that she was the official candidate of the Indian National Congress and there was nothing on record to show that she had been elected as President of the Panchayat on the basis of votes cast by members of the opposing coalition was not considered. - 5.Reliance is placed on the judgments of this Court in **George** **Elamplakkadu @Vakkachan Powathil v. A.V.Mathew @ Samkutty** [2020 (5) KHC 297], **Moly George v. Benny Thomas and another** [2021 KHC 2056], and **Jomon K.M. v.** **Kerala State Election Commission, Thiruvananthapuram** [2021 KHC 3056]. Relying on the first of these decisions, it is contended that to attract the disqualification on the ground of W.P.(C).No.8242/22 5 defection, proof of service of a copy of the direction in writing to the petitioner is mandatory and that the non-compliance of the said provision is fatal. - 6.Relying on **Moly George v. Benny Thomas** and another, it is contended that mere proof of service by affixture of the whip is not sufficient and there must be some other cogent evidence to attribute knowledge of decision of the party or the direction of the party. ## 7.In **Jomon K.M. v. Kerala State Election Commission,** - **Thiruvananhapuram** , it was held that where there is no finding in the Election Commission's order that the whip was served on the Secretary of the local body, there can be no disqualification about the valid service of the whip. - 8.The learned standing counsel for the 1[st] respondent submits that all the legal requirements necessary for a disqualification were specifically present in the instant case as is evident from the reading of Exhibit P1. It is submitted that in the light of W.P.(C).No.8242/22 6 the fact that the petitioner was elected to the Panchayat as an official candidate of the Indian National Congress, her action in having contested in the election to the post of President of the Panchayat on 17.9.2019 against the official UDF candidate and having won with support of the members of the rival coalition, the 1[st] limb of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act,1999 is attracted and that as such the technicalities of service of the whip on the Secretary did not have to be considered by the Commission at all. It is contended that even if the contentions of the petitioner are accepted, there is specific finding in Exhibit P10 that the whip had been duly served on the Secretary and that the contents of the whip had been read over at the meeting convened on 17.9.2019. It is contended that the nature of the contentions raised in the instant case the first limb of Section 3(1)(a) stood proved and the question of service of whip no longer had any relevance. 9.The learned counsel places reliance on a decision of this Court in **Sheo Paul v. Kerala State Election Commission** [2005 ## W.P.(C).No.8242/22 7 KHC 1241], **Biju R.S. And others v. Kerala State Election Commission and others** [2009(2) KHC 839], **Eruthavoor Chandran and another v.Kerala State Election Commission and others** [2018 (5) KHC 964], **Rama Bhaskaran v. Kerala State Election Commission and others** [2018 (2) KHC 126] and **Shameena Ibrahimkutty and others v. Kerala State Election Commission and Another** [2020 (6) KHC 354]. 10.The learned counsel appearing for the 2[nd] respondent would contend that the petitioner was admittedly a member of the Indian National Congress and had been elected as member of the Panchayat in that capacity. It is submitted that Annexure A1 which was marked before the State Election Commission was the copy of the proforma showing the details of the members. It is stated that the said proforma clearly shows that the petitioner was elected to the Panchayat as a member of the Indian National Congress and as a part of the UDF coalition. It is stated that the election to the post of President of the Panchayat is to be conducted by open ballot and that the W.P.(C).No.8242/22 8 Commission had inspected the minutes of the meeting held on 17.9.2019 and had specifically reached the factual conclusion that the petitioner in the writ petition was elected as President defeating the UDF candidate and won with the support of the opposing LDF coalition. It is submitted that a copy of the receipt issued by the Secretary of the Panchayat was also before the 1[st] respondent Commission and that all aspects of the matter had been duly considered. - 11.Having considered the contentions advanced, I notice that there are two limbs to Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. Section 3(1) ## (a) 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 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 he belongs or by a person or authority authorized by it in this behalf in the manner W.P.(C).No.8242/22 9 prescribed, votes or abstain from voting- (i)in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of a 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 Chairman of the Standing Committee; or in an voting on a no-confidence motion against any one of them except a member of a Standing Committee.” 12.It was considering the first limb of Section Section 3(1)(a) with regard to the concept of voluntarily giving up of membership that Exhibit P10 order had been rendered. The petitioner, who was admittedly a member of the Indian National Congress and of the UDF coalition, had admittedly contested to the post of President and had been elected as such on 17.9.2019. The rival candidate in the election was the UDF candidate. The Commission considered the material placed before it and came to a conclusion that the very act of the petitioner having contested against a candidate put up by her coalition, that is the UDF, amounts to a voluntary giving up of membership in the political party, under the flag of which she had been elected as a Member of the Panchayat. This W.P.(C).No.8242/22 10 aspect was borne out by the document produced by the parties. All the relevant documents including the minutes of the meeting held on 17.9.2019 and the open ballot were available for inspection before the Commission. It was after considering the said materials that the decision had been taken by the Commission. In a case where the first limb of Section 3(1)(a) is alleged and stands proved, I am of the opinion that any deficiency in the serving of the whip does not require to be considered and the disqualification would enure on the basis of the first limb of Section 3(1)(a) itself. In the above of the matter, I am of the opinion that the decisions relied on by the learned counsel for the petitioner would not have application in the instant case. The challenge against Exhibit P10, therefore, fails and the writ petition is, accordingly, dismissed. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.8242/22 11 ## **APPENDIX OF WP(C) 8242/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE OP 31 OF 2019 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE DEPOSITION OF PW 1 IN OP 31 OF 2019 Exhibit P4 TRUE COPY OF THE DEPOSITION OF PW 2 IN OP 31 OF 2019 Exhibit P5 TRUE COPY OF THE DEPOSITION OF PW 3 IN OP 31 OF 2019 Exhibit P6 TRUE COPY OF THE DEPOSITION OF PW 4 IN OP 31 OF 2019 Exhibit P7 TRUE COPY OF THE DEPOSITION OF PW 5 IN OP 31 OF 2019 Exhibit P8 TRUE COPY OF THE DEPOSITION OF RW 1 IN OP 31 OF 2019 Exhibit P9 TRUE COPY OF THE DEPOSITION OF RW2 IN OP 31 OF 2019 Exhibit P10 TRUE COPY OF THE ORDER DATED 8-3-2022 IN O.P. NO. 31 OF 2019 ISSUED BY THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF THE RECEIPT DATED 17.9.2019 SAID TO BE ISSUED BY SECRETARY THE RAJAKUMARY GRAMA PANCHAYAT TRUE COPY PS TO JUDGE