VASANTHAKUMARI v. KERALA STATE ELECTION COMMISSION

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ``` WA NO. 45OF 2024 ``` ``` AGAINST THE JUDGMENT IN WP(C) 3935/2023 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/PETITIONER:`** ## **`VASANTHAKUMARI`** ``` AGED 55 YEARS, MEMBER, WARD NO.4, MANKARA GRAMA PANCHAYAT, W/O LATE ASOKAN, MANGURUSSI P.O, KUNNUMMEL, MANKARA, PALAKKAD DISTRICT, PIN – 678 613 ``` ``` BY ADVS. THOMAS ABRAHAM ASWIN.P.JOHN MERCIAMMA MATHEW PAUL BABY R.ANANTHAPADMANABAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 THE KERALA STATE ELECTION COMMISSION VIKAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN – 695 033.`** ``` 2 M.V.RAMESH MEMBER WARD NO.1, MANKARA GRAMA PANCHAYAT, S/O VELAYUDHAN, MOOKKATTUKUNNU HOUSE, KALLOOR P.O, MANKARA, PALAKKAD DISTRICT, PIN – 678 613 ``` ``` BY ADVS. DEEPU LAL MOHAN SAIJO HASSAN BENOJ C AUGUSTIN(K/189/2004.) RAFEEK. V.K.(K/134/2003) M.NOOHUKUNJU SAHIB(K/541/2009) DEVI.R.SENS(K/000671/2016) ``` **2** ## **W.A.No.45 of 2024** ``` SARITHA K.(K/001422/2021) ABRAHAM J. KANIYAMPADY(K/3280/2023) SANGEETH MOHAN(K/3399/2023) PHILLIP VARGHESE THOMAS(K/003032/2023) V.P.REJITHA(K/899/2001) ASWIN K.R.(K/101/2021) AMBADI DINESH L.K.(K/002835/2022) NEEMA NEERACKAL(K/002823/2022) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.45 of 2024** **3** ## **JUDGMENT** Dated this the 6[th] day of February 2024 ## **A.J. Desai, C.J.** The challenge in this appeal filed under section 5 of the Kerala High Court Act, 1958, is the judgment dated 18.12.2023 in W.P.(C)No.3935 of 2023 by which the learned single Judge, while dismissing the petition filed by the appellant/writ petitioner, confirmed an order dated 17.01.2023 passed by the Kerala State Election Commission in O.P.No.10 of 2021 by which the appellant was declared disqualified under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 2. Short facts that arise from the record are as under: The appellant filed his candidature in Form No.2A of rule 6(2a) of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 as an independent candidate in the election to Ward No.4 of Mankara Grama Panchayat conducted in the year 2020. The appellant won the election and as provided under sub-rule (2) of Rule 3 of the Kerala Local Authorities (Disqualification of ## **W.A.No.45 of 2024** **4** Defected Members) Rules, 2000, the appellant was supposed to fill up Form No.2 i.e., declaration showing the details about her candidature. The appellant filled up the said Form No.2, declaring herself as an independent candidate, who had contested the election with the support of CPI(M) party. Thereafter, with the support of the LDF coalition, which included CPI(M), she contested the election and became the Vice President of the Panchayat. 3. The conduct of the appellant lead to the filing of O.P. No.10 of 2021 by the 2[nd] respondent, seeking a declaration that the appellant stood disqualified by virtue of Sections 3 and 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short ‘Act 1999’). The Election Commission, after considering all the materials and perusing the deposition of several witnesses, declared the appellant to be disqualified to continue as Member and Vice President of the Grama Panchayat. The said decision was challenged by the appellant by filing W.P.(C) No.3935 of 2023 and the said writ petition came to be dismissed by the impugned judgment. Hence, this appeal. **W.A.No.45 of 2024** **5** 4. Learned counsel appearing for the appellant would submit that the Election Commission as well as the learned single Judge has committed an error in appreciating the facts of the case. He would submit that after filing the nomination form as an independent person, she had declared in the public notice that she is contesting the election as an independent candidate with the support of CPI(M) and had canvassed votes under that notice and therefore, in the declaration form filed by the appellant, the appellant declared that she had contested and won the election with the support of the CPI(M). 5. By taking us through the deposition of witnesses, the learned counsel would submit that it was decided in the party committee meeting that the appellant will contest the election to Ward No.4 as candidate of the CPI(M) and she was fielded as an independent candidate since the name of another candidate from CPI, a contestant of the LDF coalition was also declared. He would further submit that, as the appellant has not joined any party after election, her case is not covered under section 3(1)(c) of the Act 1999 and, therefore, the Commission as well as the ## **W.A.No.45 of 2024** **==> picture [8 x 9] intentionally omitted <==** learned single Judge has committed an error in holding that the appellant had joined another political party. He, therefore, would submit that appeal be allowed and the order passed by the Election Commission and the judgment delivered by the learned single Judge be quashed. 6. On the other hand, learned standing counsel appearing for the Election Commission has produced the record of proceedings in O.P.No.10 of 2021. By taking us through the candidature form, he would submit that the appellant has categorically stated therein that she is contesting the election as an independent candidate. He would submit that this form was submitted on 23.11.2020. However, the so-called notice produced, by which the appellant declared that she is contesting the election with the support of the CPI(M) Party, is dated 26.11.2020, viz; subsequent to the filing of her candidature. By taking us through the declaration form, he would submit that after submitting the nomination as an independent candidate, the appellant contested the election with the support of CPI(M), which would bring the appellant’s case within the purview of ## **W.A.No.45 of 2024** **==> picture [8 x 9] intentionally omitted <==** section 3(1)(c) of the Act 1999. He would submit that the question whether a person has joined another party or not can be decided by his/her conduct, and in the present case, the appellant had joined a political party after contesting the election as an independent candidate, which is a ground for disqualification. In support of his submission, learned counsel relied on the decision in **Jagjit Singh v. State of Haryana and Others** reported in (2006) 11 SCC 1 of the Hon’ble Apex Court. He would further submit that a similar issue was considered by the Division Bench of this court in the case of **Sheeba George v. State Election Commission of Kerala** reported in 2022 KHC 763. He, therefore, would submit that the appeal be dismissed. 7. We heard learned Advocates appearing for the respective parties and perused the record of proceedings produced by the Election Commission. 8. In the candidature form, which is required to be filed in Form No.2A, the appellant has categorically stated that she is contesting the election as an independent candidate without the ## **W.A.No.45 of 2024** **8** support of any party. The said form is filled up on 23.11.2020. After being elected as a Member of Mankara Grama Panchayat, the appellant had submitted a declaration form, wherein she categorically stated that she had contested as an independent candidate with the support of CPI(M) and thereafter, with the help of the Members of LDF, she was elected as the Vice President. This conduct of the appellant is sufficient to establish that the appellant had acted contrary to the mandatory requirement contained in rule 3(2)(c) of the Rules 2000. 9. In the case of **Jagjit Singh v. State of Haryana and Others** (supra), the Hon’ble Apex Court held as under: “50. It was also contended that para 2(2) of the Tenth Schedule deserves to be strictly construed. The submission is that the word 'join' in para 2(2) deserves a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the Speaker. Para 2(2) of the Tenth Schedule reads as under: "2. (2). An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for **W.A.No.45 of 2024** **9** being a member of the House if he joins any political party after such election." 51. As noted earlier, the object of the defection law has to be borne in mind. The question to be considered is whether a Member formally joining a political party is the requirement so as to earn disqualification or the factum of joining can be inferred from facts and conduct of a Member, without a Member formally joining a political party inasmuch as not filling form required to be filled by a member of the political party under the rules and regulations of that party or payment of any prescribed fee. The respondents pleaded for a liberal construction and submitted that inference from conduct was sufficient to establish that an independent Member has joined a political party. These are two extreme views on the issue. 52. We are of the view that to determine whether an independent Member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a Member joining a political party. At the same time, non-fulfilment of formalities with a view to defeat the intent of para 2(2) is also of no consequence. The question of fact that a Member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur ## **W.A.No.45 of 2024** ## **10** disqualification provided in para 2(2) is to be determined on appreciation of the material on record.” 10. Apart from the above decision, the case is squarely covered by the judgment in **Sheeba George** (supra) delivered by this court also. The reason for the appellant contesting the election as an independent candidate can only be discarded in view of the settled legal position. Hence, we do not find any reason to interfere with the order passed by the Election Commission and the judgment of the learned single Judge. The appeal is accordingly dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **A.J. Desai Chief Justice** Sd/- **V.G. Arun Judge** **vpv** **W.A.No.45 of 2024** **11** ## **`APPENDIX OF WA 45/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1 ``` ``` THE TRUE COPY OF THE ORDER NO.B3/30/2023-SEC DATED 29/12/2023 APPOINTING THE SPECIAL TAHSILDAR, KINFRA, PALAKKAD AS THE RETURNING OFFICER FOR THE ELECTION TO THE VICE PRESIDENT OF MANKARA GRAMA PANCHAYAT ALONG WITH ITS ENGLISH TRANSLATION ``` ``` TRANSLATION OF EXHIBIT P2 ``` ``` TRANSLATION OF EXHIBIT P2 ``` ``` TYPED COPY OF EXHIBIT P3 ``` ``` TYPED COPY OF EXHIBIT P3 ``` ``` TRANSLATION OF EXHIBIT P4 ``` ``` TRANSLATION OF EXHIBIT P4 ```