Varghese K.V @ Thankachan Kanjirakkattu v. State Election Commission, Kerala and R. Jayakumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942** ## **WP(C).No.17598 OF 2019(Y)** ## **PETITIONER:** **VARGHESE K.V @ THANKACHAN KANJIRAKKAKTTU, AGED 60 YEARS, S/O.THOMAS VARKEY, KANJIRAKKATTU HOUSE, MANJADI, THIRUVALLA-689 105, CHAIRMAN, THIRUVALLA MUNICIPALITY.** **BY ADVS. SRI.CHERIAN GEEVARUGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS SRI.JEEVAN VIJU SRI.K.RAMAKUMAR (SR.)** ## **RESPONDENTS:** **1 STATE ELECTION COMMISSION, KERALA, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, THIRUVANANTHAPURAM-31. 2 MR.R.JAYAKUMAR, S/O.K.R.C.PANICKER, JAYAVIHAR, KIZHAKKUMMURY, KAVUMBHAGAM P.O., THIRUVALLA-689 102.** **R1 BY SRI.MURALI PURUSHOTHAMAN, STANDING COUNSEL SRI. GOPINATHAN, SR. GOVERNMENT PLEADER R2 BY ADVS. SRI.JOSEPH GEORGE SRI.BIJO THOMAS GEORGE SMT.NICEY A. MENON SRI.P.A.REJIMON** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-10-2020,THE COURT ON 30-10-2020 DELIVERED THE FOLLOWING:** ## ========================= W.P.(C).No.17598/2019 ~~~~~~~~~~~~~~~~~~~~~~~~~ ## J U D G M E N T ## Dated this the 30[th] day of October, 2020 This writ petition was filed challenging an order of the State Election Commission declaring the petitioner disqualified for being Councilor of Thiruvalla Municipality and also declaring that the petitioner is disqualified from contesting election to any local authorities for a period of six years. 2. The petitioner, Shri Varghese K.V. and Shri R.Jayakumar, the second respondent are elected Councilors of Thiruvalla Municipality based on the election held in November 2015. They were elected as the candidates of Indian National Congress (INC). The parties are hereafter ## **`WPC 17598/2019`** ## **-:2:-** referred to by their names. INC was part of the political coalition by name United Democratic Front (UDF). 3. UDF Coalition obtained majority seats in the Council. An understanding was arrived in the coalition to share chairmanship. For the first 30 months, the nominee of INC would get chairmanship and the remaining 30 months to the nominee of the Kerala Congress (M), a constituent of UDF would get chairmanship. Further understanding appears to have been made within INC to share chairmanship between Shri Varghese and Shri Jayakumar for a period of 15 months each. Shri Varghese became the Chairman for the initial period. As per the understanding, he has to resign from Chairmanship on 18/2/2017. Thereafter, DCC intervened and directives were issued to Shri Varghese to step down. 4. It is submitted that the President of District Congress Committee (DCC) issued a notice to Shri Varghese on 20/2/2017. Shri Varghese refused to resign. The Committee of Councilors was convened on 20/3/2017, and Shri Varghese agreed in that meeting to resign on 31/3/2017, that also did not happen. On 1/4/2017, the District Committee President, ## **`WPC 17598/2019`** ## **-:3:-** Shri Babu George, authorised Shri Jayakumar to move a no-confidence motion against Shri Varghese. Accordingly, no-confidence motion was moved, and a meeting was convened on 18.4.2017. Shri Varghese attended the no-confidence motion and supported the motion against him. However, the no-confidence motion failed as some of the councilors of INC failed to attend the meeting and also for the reason that the opposition party abstained from the meeting. 5. This resulted in the District President of INC issuing a direction to Shri Varghese on 5/5/2017 to resign from the post of the Chairman of the Municipality within ten days. The notice was received by Shri Varghese on 8/5/2017. Shri Varghese refused to resign. On 17/7/2017, Shri Jayakumar filed the petition for a declaration to disqualify Shri Varghese before the Election Commission. 6. The Election Commission allowed the petition and granted the relief as noted above. The Election Commission granted relief referring to the ground of defection under the first limb of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ## **`WPC 17598/2019`** ## **-:4:-** (hereinafter referred to as the “Prohibition Act”), that is related to the defection of a member of a political party voluntarily giving up his membership of such political party. 7. This Court has to consider the matter only confined to the ground referable to the first limb of Section 3(1)(a) as referred above. The Court has to consider whether the finding of the Election Commission is based on any materials or not. If there are materials, the Court cannot upset any such finding of facts invoking the power of judicial review. 8. The Election Commission mainly relied on the following materials: Ext.A1 agreement to share the Chairmanship between Shri Varghese and Shri Jayakumar; Ext.A2 notice issued by DCC President directing Shri Varghese to resign from the Chairmanship and to support Shri Jayakumar for the election as the next Chairman; Ext.A5 decision of the Parliamentary Committee wherein Shri Varghese undertook to resign by 31/3/2017; Ext.A6 decision of DCC President authorising Shri ## **`WPC 17598/2019`** ## **-:5:-** Jayakumar to move a no-confidence motion and; Ext.A9 letter dated 5/5/2017 issued by the DCC President directing Varghese to resign from the post of Chairman. 9. The findings based on materials as above establish the following facts: i. On account of refusal to resign from the Chairmanship, no-confidence motion was moved against Shri Varghese. ii. Shri Varghese failed to resign from the post of Chairmanship in spite of notice issued by DCC President on 5/5/2017. 10. Based on the findings as above, this Court has to consider whether the grounds as referable under the first limb of Section 3(1)(a) of the Prohibition Act are attracted or not. 11. It is appropriate to refer the precedents related to the matter. In **Eruthavoor Chandran and another v. Kerala State Election Commission and others [2018 (5) KHC 964]** , a Division Bench of this Court held that failure of a member of a political party to act in accordance with political ## **`WPC 17598/2019`** ## **-:6:-** directives amount to voluntarily abandoning membership of the political party to attract disqualification under the first limb of Section 3(1)(a) of the Act. In **Faisal P.A. v. K.A.Abdulla Kunhi and another [2008 (3) KHC 267]** , a learned Single Judge of this Court held that if a member by his conduct defies the party directives and whip, he is deemed to have abandoned his party membership and is liable to be disqualified. Another Single Judge in **Chenthamara K. and** **Others v. Kerala State Election Commission, Tvm and Others** **[2015 KHC 7086]** held that disqualification for voluntarily giving up the membership of the political party to which one belongs is not dependent on any violation of the whip. 12. Shri Varghese voted against him in the no-confidence motion to remove him as the Chairman. That does not mean he has not acted against the party. Shri Varghese cannot be disqualified on the ground of violation of the whip, but he can be disqualified for the reasons leading to the motion of no-confidence. The party again gave him an opportunity to step down through a letter dated 5/5/2017. He refused. This gave a cause of action. The ## **`WPC 17598/2019`** ## **-:7:-** series of defiance of party directives would constitute a separate cause of action. However, nothing impedes the Election Commission considering the facts related to each cause of action to fortify the findings related to the cause of action on which the petition was filed. The cause of action arose on 18/5/2017 is a result of a series of actions compelling Shri Varghese to step down from the post. The defiance of party directives by Shri Varghese to step down on 18/5/2017 is nothing but voluntarily giving up membership of his own party. 13. A distinction has to be drawn as to the conduct which may attract only disciplinary action within the political party and the conduct which attract disqualification under the Prohibition Act. If a conduct has no relation or bearing with the membership in a local authority, that may only attract disciplinary action within the party. The learned Senior Counsel Shri Ramakumar appearing for Shri Varghese relying upon the dictum laid down by this Court in **Chenthamara's** case ( _supra_ ) argued that Shri Varghese by his conduct supported the no-confidence ``` WPC 17598/2019 ``` ## **-:8:-** motion against him and, therefore, no question of defection would arise in this matter. 14. This Court cannot accept the above argument. A political party has a pivotal role in a representative democracy. In a representative democracy, votes are cast endorsing the ideology and promises made by the political party. The political party, therefore, is accountable to the Electorate. This Court in **Joseph v. Babychan [2015 (1) KLT SN 21 (C.No.29)]** observed that it is in order to check erosion of the values in the democracy, the Prohibition Act 1999 was brought into force. If a member chooses to withdraw from the political party, he in turn betrays the people who elected him. The conduct of a member of a political party in relation to the affairs of the local authority alone has to be considered for disqualification under the Prohibition Act. If a member of a political party defies any political directives in relation to the affairs of the local body, that amounts to voluntarily giving up membership of such political party. The refusal by Shri Varghese to step down from the post of Chairman in spite of ``` WPC 17598/2019 ``` ## **-:9:-** the direction given by the President of his own party is nothing but voluntarily giving up membership of his own party. In the light of the discussions as above, the writ petition is only to be dismissed. Accordingly, the writ petition is dismissed. No costs. ## A.MUHAMED MUSTAQUE, JUDGE ms ## **APPENDIX OF WP(C) 17598/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OP NO.42/2017 BEFORE THE ELECTION COMMISSION KERALA, TRIVANDRUM DATED 17.07.2017.** **EXHIBIT P2** - **TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN OP NO.42/17 BEFORE THE KERALA STATE ELECTION COMMISSION KERALA, TRIVANDRUM DATED 06.07.2018.** ## **EXHIBIT P3** - **TRUE COPY OF THE ANNEXURE A2 DOCUMENT ALLEGED TO BE A WHIP ISSUED ON 24.02.2017 PRODUCED BY THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF RESOLUTION DATED NIL.** - **EXHIBIT P5 TRUE THE NOTICE ISSUED TO THE PETITIONER DATED 07.04.2017 FROM THE CORPORATION SECRETARY.** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE EKRALA STATE ELECTION COMMISSION, TRIVANDRUM DATED 19.06.2019 IN OP NO.42/2017.** ## **RESPONDENTS' EXHIBITS: NIL**