T.K. Rejimon @ Rejimon Kuttappan v State of Kerala, Kerala State Election Commission and Anila Babu (WA No. 1605 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936** **WA.No. 1605 of 2014** **------------------------------** **AGAINST THE JUDGMENT IN W.P.(C).NO.13781/2014, DATED 14-08-2014** **----------------------** ## **APPELLANT(S)/WRIT PETITIONER :** **----------------------------------------------------** **T.K.REJIMON @ REJIMON KUTTAPPAN, S/O.KUTTAPPAN, THOPPIL VEEDU, AYMANAM P.O, KOTTAYAM DISTRICT, PIN- 686 015, MEMBER, WARD NO.13, AYMANAM GRAMA PANCHAYAT.** ## **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENT(S)/RESPONDENTS :** **--------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENTS, THIRUVANANTHAPURAM- 695 001.** **2. KERALA STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, L.M.S JUNCTION, THIRUVANANTHAPURAM, PIN- 695 033.** ## **3. ANILA BABU,** - **W/O.BABU K ABRAHAM, KARIMPUKALAYIL, PARIPPU P.O., KOTTAYAM DISTRICT, PIN- 686 014, MEMBER, WARD NO.17 AYMANAM GRAMAPANCHAYAT.** **R1 BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, S.C R3 BY SRI.K.JAYAKUMAR (SENIOR ADVOCATE) ADV. SRI.M.SREEKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. Ashok Bhushan, Ag. C.J & A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.A. No. 1605 of 2014 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 2[nd] day of December, 2014. ## J U D G M E N T ## Shaffique, J. This appeal is filed against the judgment dated 14.8.2014 of the learned Single Judge in W.P(C) No. 13781/2014. The appeal is filed by the writ petitioner, who is hereinafter referred to as the petitioner. 2. The writ petition was filed challenging Ext. P15 order passed by the Kerala State Election Commission (for short 'the Commission') declaring that the petitioner is disqualified from being a member of Aymanam Grama Panchayath in terms of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act (hereinafter referred as the Act) and he was further disqualified from contesting as a candidate in an election to the local authority for a period of six years as provided under Section 3(3) of the Act. 3. The facts involved in the writ petition would disclose that the petitioner was elected as a member of Aymanam Grama Panchayath in the election held during October, 2010, as an independent candidate. He was further elected as the Vice President of the Panchayath on 8.11.2010. There was a request from the elected members of United Democratic Front (for short 'UDF'), which included Kerala Congress (M) (for short 'KCM'), requesting the petitioner to resign after 2½ years. The petitioner did not resign. A no confidence motion was moved against him. He did not attend in the meeting which was held on W.A. No. 1605 of 2014 -: 2 :- 12.8.2013 to discuss the no confidence motion. The said motion was defeated and the petitioner continued to be the Vice President of the Panchayath. 4. Alleging that the petitioner was an independent candidate supported by KCM with an independent symbol 'Jeep', O.P. No. 71/2013 was filed by the 3[rd] respondent herein before the Commission. It was inter alia alleged that he was an independent candidate supported by KCM, which, in turn, was part of the UDF coalition. The allegation was that there was an understanding among the Indian National Congress (for short 'INC') and KCM, which form the UDF members in the elected body that the post of President and Vice President shall be shared between them. Accordingly, the petitioner was allotted with the first 2½ years being a nominee of KCM and after the expiry of the said period, the arrangement was that the Vice President post will be held by Indian National Congress (INC). It is alleged that all members of the Panchayath in the UDF had given a declaration before the Secretary of the Panchayath showing their association with the political party and coalition. The petitioner had affirmed that he won the election as an independent candidate supported by KCM and he had affiliated with all the elected UDF members, particularly KCM. It is alleged that when the petitioner failed to accede to the demand of the political party, the party was forced to move a no confidence motion against the petitioner. The parliamentary party unanimously W.A. No. 1605 of 2014 -: 3 :- decided to move no confidence motion and remove him from the post of Vice President. Whip was issued by the District President of the KCM requesting him to support the motion. Appropriate directions were given to all the members of KCM to support the motion and to declare the stand of the political party. Contrary to the said stand of the political party, the petitioner purposefully abstained from attending the meeting, as a result of which the motion was defeated. It is submitted that the total strength of the Panchayath was 20, and 6 INC and CPM members abstained from voting. There was no quorum for discussion and the meeting could not be held. It is contended that the decision for abstaining from the meeting was in collusion with Left Democratic Front (for short 'LDF') and the Communist Party (Marxist) (for short 'CPM'). It is further alleged that the petitioner has withdrawn his affiliation and association with KCM and UDF and has joined the LDF supporters, which is a clear case of defection entitling him for disqualification. Hence, Ext. P1 complaint was filed before the Commission seeking for a declaration that the petitioner committed defection and is disqualified to be a member of the Panchayath. The petitioner submitted Ext. P2 objection inter alia contending that he was an independent candidate with an independent symbol of 'Jeep'. He was not put up by any political party. According to him, there was no agreement either with UDF or KCM. It is after the election that he was supported by UDF and consequently, he was W.A. No. 1605 of 2014 -: 4 :- supported by KCM also. According to him, he has no allegiance to the KCM party. He was elected by majority of the members as Vice President for the full term of five years and there was no understanding with KCM or UDF as alleged. Therefore, according to him, he has not committed any act of indiscipline as alleged. 5. Evidence was adduced in the case on the basis of which Ext. P15 order dated 20.5.2014 was passed by the Commission. The Commission had come to the conclusion that in Ext. P1 declaration submitted by the petitioner on 1.11.2010, he has categorically stated that he has contested the election as an independent candidate having the support of KCM, which is a constituent of UDF. In Ext. P3, copy of the register maintained by the Panchayath under Rule 3(1) of the Kerala Local Authorities (Disqualification of Defected Members) Rules showing political affiliation of members, the Secretary of the Panchayath has, based on the declaration made by each member, recorded that the petitioner is an independent member having support of KCM under UDF coalition. Reference is also made to Ext. P2 agreement, which indicates that the petitioner has contested in the seat earmarked for KCM, with their support and that he will abide by the bye laws of the said party and direction of KCM District President. The evidence of PW1 was supported by the oral evidence of PW3, who is the Kottayam District President of KCM. The Aymanam Mandalam President of KCM has also spoken to that effect W.A. No. 1605 of 2014 -: 5 :- when examined as PW2. The petitioner, when confronted with Ext. P2 agreement, denied his signature. However, he admitted Ext. P1 in which he has declared that he was elected with the support of KCM under UDF coalition. According to him, he was given the post of Vice President as there was no KCM male member. Since he was offered with the said post, he had filled up Ext. P1 stating that he was supported by KCM. Further the petitioner has also admitted that he had attended the meeting of KCM as evident from Exts. X1 series and X2 series. RW2, a member of Congress Party supported the petitioner. However, he admitted the fact that in Ext. P2, he has mentioned the name of the petitioner as member belonging to UDF coalition. On that basis, the Commission found that the petitioner had contested in the seat allotted to KCM party and he was supported by KCM under UDF coalition. UDF secured 13 seats, including that of the petitioner and he was elected as Vice President. 6. The Commission observed that if the petitioner was only an independent member without any coalition, there was no reason to elect him as Vice President. Further, Exts. P3 and P9 were proof enough to indicate that he was supported by KCM. Ext. P3 is the register showing the party affiliation of the members and Ext. P9 is the agreement submitted by the petitioner to the President of KCM, Kottayam District. 7. The documentary evidence available in the case W.A. No. 1605 of 2014 -: 6 :- clearly indicates that the petitioner was a person supported by KCM. There is no reason to disbelieve such documentary evidence as against the oral testimony of the petitioner and his witnesses. The Election Commission came to the conclusion that the petitioner contested the election as an independent candidate with the support of KCM. Having found so, it was further found, based on the evidence available on record that there was an arrangement between the petitioner and KCM party that the petitioner will be elected as Vice President for a period of 2½ years and the next 1½ years was to be given to a candidate of INC. He was therefore asked to resign from the post of Vice President by KCM. He did not accede to the said request. The Party moved no confidence motion against him signed by 3 members of KCM. He cannot contend that he was not aware of the said no confidence motion supported by his own political party members. He had knowledge about the said no confidence motion moved by KCM and despite the fact that he was informed about such no confidence motion, he failed to attend the said meeting and hence no confidence motion was defeated. The Commission relied upon the judgments of this Court in **Faisal v. K. Abdulla Kunhi** , (2008) 3 KLT 534 and **Dharmamani v. Parassala Block Panchayat** , (2009 (3) KLT 29) and held that the petitioner having failed to accede to the demand made by the political party, has committed defection of voluntarily giving up membership from the political party. W.A. No. 1605 of 2014 -: 7 :- For having committed default, he becomes disqualified. 8. The learned Single Judge, after elaborately considering the contentions urged by the petitioner, found that the Election Commission had arrived at the conclusion that the petitioner was a member supported by KCM, based on sufficient materials, which cannot be treated as perverse. The learned Single Judge had independently considered the contention urged on behalf of the petitioner and formed an opinion that though the petitioner was a member supported by KCM, he had colluded with LDF to survive the no confidence motion. In so far as the petitioner has defied the decision of a political party which supported him, the Commission was justified in arriving at the said conclusion. Accordingly, the writ petition was dismissed. 9. The learned counsel for the appellant, while impugning the aforesaid judgment, would contend that by virtue of Section 2(ii) and the Explanation thereof, an independent member elected with the support of any political party being part of UDF coalition shall be deemed to be a member of the coalition and not a member of any particular political party. Therefore, it is contended that the he was supported by the UDF and has no obligation to comply with any direction issued by the political party KCM. Defiance of directions issued by them cannot be a reason for disqualifying the petitioner from being a member of the Panchayath. 10. Further contention urged was with reference to W.A. No. 1605 of 2014 -: 8 :- Explanation to Section 3, which provides that elected members of the local authority shall be deemed to be members of the political party. According to petitioner, he was not a person who was set up as a candidate of KCM as it was not a seat earmarked for KCM by the UDF coalition. It is also argued that no specific pleadings were available to indicate that the petitioner contested the election in the seat earmarked for KCM. 11. Having regard to the aforesaid arguments, it is pertinent to note that these contentions are apparently based on factual dispute between the parties. The factual dispute is whether the petitioner was a candidate supported by KCM or not. The learned counsel argued that there is no pleading to that effect. In paragraph 1 of Ext. P1 itself, it is stated that “the respondent is elected as an independent candidate supported by Kerala Congress (M) with an independent symbol “Jeep”.” This pleading is sufficient to indicate that he is a person elected as an independent candidate and supported by KCM. 12. Then, the next question is whether the said pleading is supported by any evidence. The Election Commission as well as the learned Single Judge had, on an appreciation of the evidence on record, come to the conclusion that the petitioner was an independent candidate supported by KCM, a political party, which is a coalition of UDF. There is no material to indicate that such finding of fact is without any basis or is perverse. The Commission as W.A. No. 1605 of 2014 -: 9 :- well as the learned Single Judge had relied upon materials available on record to come to such a conclusion. Therefore, when a statutory authority as well as a learned Single Judge of this Court had, on appreciation of evidence, come to a finding that the petitioner was an independent candidate supported by a political party, we do not think that in exercise of appellate jurisdiction, we should form a different opinion as there is no perversity in the findings aforesaid. 13. It is argued that the learned counsel for petitioner that at best petitioner can only be considered as part of UDF coalition. Reference is made to Section 2(ii) of the Act, which reads as under: _“(ii) “coalition” means a coalition made between more than one political parties or between more than one political parties and one or more independents or between one political party and one or more than one independents or between more than one independents for the purpose of contesting any election of a local authority._ _Explanation:- A member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition;”_ When there is a factual finding that the petitioner was an independent candidate fielded by a political party, the Explanation to Section 2(ii) clearly indicates that a candidate who is supported by one of the political party shall be deemed to be a member included in that political party. The petitioner, therefore, cannot have any argument based on Section 2(ii) read with Section 3. W.A. No. 1605 of 2014 -: 10 :- 14. Reference is made to the Explanation to Section 3 to contend that he shall be deemed to be a member of a political party only if there is any such party by which he was set up as a candidate for the election. It is argued that he was a not a person set up as a candidate of KCM. As already indicated, the evidence on record proves otherwise and we do not find any illegality or perversity in the findings of the Commission and that of the learned Single Judge. Since no grounds are made out to interfere with the judgment of learned Single Judge in exercise of the appellate jurisdiction, we decline to entertain the writ appeal and accordingly the same is dismissed. Ashok Bhushan, Ag. Chief Justice A.M. Shaffique, Judge. Tds/