Vimala Haridasan v. Kerala State Election Commission and E.C.Mohammed S/o Ali Kunju

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 ``` ## **`WP(C) NO. 22480 OF 2017`** ## **`PETITIONER:`** ``` VIMALA HARIDASAN AGED 46 YEARS COUNCILLOR, WARD NO.12, KODUVALLY MUNICIPALITY, RESIDING AT KOODAKKUZHIYIL VEEDU, MANIPURAM, KODUVALLY, KOZHIKODE DISTRICT-673572. ``` ``` BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR ``` ## **`RESPONDENTS:`** - **`1 THE KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM- 695001.`** - **`2 E.C.MOHAMMED S/O ALI KUNJU, ELAVANCHALIL HOUSE, KODUVALLY, KOZHIKODE DISTRICT-673672, COUNCILLOR, WARD NO.29, KODUVALLY MUNICIPALITY.`** ``` SRI.K.M.FIROZ SMT.M.SHAJNA SRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ## **`24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` WP(C) NO. 22480 OF 2017 ``` ``` 2 ``` ## **`JUDGMENT`** ## **Dated this the 24[th] day of May, 2023** This writ petition is filed seeking the following prayer: _“(i) to call for the records leading to the issuance of Exhibit P-1 order dated 09.06.2017 in O.P. No.83 of 2015 of the 1[st] respondent and set aside the same”_ 2. Heard the learned counsel for the petitioner, the learned standing counsel appearing for the Commission as well as the learned counsel appearing for the 2[nd] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner contested the elections conducted by the local authority on 02.11.2015 as a candidate in ward No.12 of the Koduvally Municipality. Ext.P2, which is the nomination, would show that the petitioner had submitted nomination as an independent candidate supported by the Indian Union Muslim League (IUML). It is submitted that another nomination had been submitted by Smt.Razeena as a candidate of the Indian National Congress (INC) in the same ward. The IUML as well as the INC were members of the ``` WP(C) NO. 22480 OF 2017 ``` ``` 3 ``` UDF coalition. It is submitted that the last date for withdrawing the nominations was on 17.10.2015. However, thereafter, meetings were convened by the local unit of the coalition and a decision had been taken to freeze the candidature of Smt.Razeena and to field the petitioner as the official candidate of the coalition. The voting was held on 02.11.2015 and the declaration of results was on 07.11.2015. The petitioner won the election with 390 votes out of the total polled votes of 773 and Smt.Razeena who had withdrawn from the election got only 56 votes. The petitioner submitted a declaration stating that she was elected as an IUML/UDF candidate. 4. Ext.P6 original petition was filed by the 2[nd] respondent alleging that the petitioner had submitted the declaration stating that she is an independent councilor with the support of the UDF. It was contended that the UDF had fielded Smt.Razeena as its official candidate and that the petitioner was an independent candidate in the election and therefore the declaration submitted by her was wrong. 5. The petitioner submitted Ext.P7 objection. She had specifically contended that though Smt.Razeena had submitted nomination as a ``` WP(C) NO. 22480 OF 2017 ``` ``` 4 ``` candidate of the INC, finally as instructed by the coalition, the INC has decided to support the IUML and to freeze the candidature of Smt.Razeena. It was stated that the petitioner had contested the election as the official candidate of the coalition and that she had won with 390 votes out of the total polled votes of 773 and Smt.Razeena had got only 56 votes. It is therefore contended that, in the nomination itself, the petitioner had clearly stated that she is an independent candidate supported by the IUML and that the declaration that she is an independent candidate supported by the political party and consequently, the coalition, does not result in any defection. 6. The Commission proceeded to consider the original petition and the evidence placed on record. It was found that the INC and the IUML, being part of the same coalition, there could not have been two candidates fielded by the same coalition. On the strength of Ext.P8 copy of the list of candidates furnished by the coalition on 14.10.2015, it was found that Smt. Razeena was the official candidate and that the declaration submitted by the petitioner therefore amounts to a defection. ``` WP(C) NO. 22480 OF 2017 ``` ``` 5 ``` 7. The learned counsel for the petitioner submits that the petitioner had produced material to show that she was the official candidate of the coalition including Exts.P3 to P5. It is contended that since the IUML was admittedly a constituent of the UDF coalition, the declaration given by the petitioner was perfectly in order and would not attract the provisions of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred as ‘the Act’). 8. The learned counsel for the petitioner would also place reliance on a decision of this Court in **Sivadasan K. v. Kerala State Election Commission, Tvm and another** [2020 (6) KHC 408]. It is submitted that Sri.Sivadasan was also an independent candidate in the very same election to ward No.28 of the very same municipality. It is submitted that there was another candidate fielded as candidate of the INC in the election, that is, Sri.Gopalan. However, after the last date for the withdrawal of the nominations and before the elections, to be precise, on 21.10.2015, the Municipal Committee of the coalition had met and decided that Sri.Sivadasan as well as the petitioner herein would be fielded as the official candidates of the coalition. Thereafter, ``` WP(C) NO. 22480 OF 2017 ``` ``` 6 ``` Sri.Sivadasan had also submitted a declaration that he was elected as a member of the coalition which was challenged as a defection under Section 3(1)(c) of the Act by the 2[nd] respondent by filing an original petition before the Election Commission. The Commission had entered a finding that since Sri.Sivadasan was not the official candidate of the INC or the UDF coalition and since there was another candidate fielded by the political party and the coalition, the declaration submitted by the returned candidate that he is an independent candidate supported by the UDF amounts to a defection. In a challenge raised to the said finding, this Court had considered the provisions in detail and had found that there is no provision prescribed in the Statute to record the arrangements made among political parties or independents for the purpose of contesting an election under the umbrella of the coalition. It was found that the definition of coalition in the Act also does not define the geographical boundaries of the arrangements among political parties or independents. 9. It was found that the Municipal Committee of the coalition had decided to field Sri.Sivadasan as its official candidate in ward No.28 ``` WP(C) NO. 22480 OF 2017 ``` ``` 7 ``` and therefore the finding that there was another official candidate for the UDF in the said constituency and that Sri.Sivadasan could have contested the elections only as a purely independent candidate was untenable. This Court after considering the contentions advanced and the evidence let in before the Commission held that Sri.Sivadasan had declared himself to be a part of the UDF coalition after he was elected as an independent member. It was found that a person who had actually contested the election as a part of a coalition cannot be punished on account of the lack of clarity and shortcomings in the law and it would be an injustice to deprive a person who declared himself loyal to a coalition by exercising the anti-defection law against him only because a declaration from the contestant of the coalition before the election is not contemplated in the law. The finding of defection against Sri.Sivadasan was therefore set aside. The said judgment has become final. 10. The learned counsel for the petitioner relies on Ext.P10 document produced along with I.A. No.2/2022 in this writ petition. This document was admittedly part of the evidence adduced in ``` WP(C) NO. 22480 OF 2017 ``` ``` 8 ``` Sivadasan’s case before the Kerala State Election Commission. Ext.P10 is the certified copy of the minutes of the Municipal Committee of the UDF coalition which decided that Sri.Sivadasan would be the official candidate of the UDF in ward No.28 and that the petitioner would be fielded as the official candidate of the coalition in ward No.12. It is contended by the learned counsel for the petitioner that though the petitioner could not produce such evidence before the Commission, the facts are identical in the petitioner’s case and in Sivadasan’s case and that therefore, the petitioner would also be entitled to the benefit of the findings of this Court in Sivadasan’s case. 11. The learned standing counsel appearing for the Kerala State Election Commission would draw my attention to the provisions of the Act and the Rules. It is submitted that Section 3 of the Act provides only for three types of members against whom the law of defection would apply. It is stated that the law is applicable to a member of a local authority belonging to a political party, an independent member belonging to a coalition and an independent member not belonging to any coalition. It is further contended that Rule 3 of the Kerala Local ``` WP(C) NO. 22480 OF 2017 ``` ``` 9 ``` Authorities (Disqualification of Defected Members) Rules, 2000 (hereinafter referred as ‘the Rules’) specifically provides for a person who contested as a candidate of the coalition or as a candidate with the support of the coalition to file a declaration to that effect before the officer authorized under sub rule 1 and such member shall be treated as the member of that coalition or as a member with the support of the coalition as the case may be. Rule 3(2)(c) of the Rules provides that an independent who contested the election otherwise than as a candidate of the political party or a coalition or as a candidate with the support of the same shall file a declaration to that effect before the officer authorized under sub rule (1) and accordingly that member shall be treated as an independent member and a register under sub rule (1) shall be maintained. It is submitted that in the instant case, the petitioner had contested the election as an independent with the support of the IUML. However, in the declaration submitted under Rule 3 of the Rules, the petitioner had specifically stated that she was an independent supported by the IUML and the UDF. On the materials placed on record by the petitioner and the evidence let in by her, the ``` WP(C) NO. 22480 OF 2017 ``` ``` 10 ``` Commission had arrived at the conclusion that there was another official candidate fielded by the UDF and that the petitioner could not produce any evidence to show that she was in fact the official candidate of the UDF. The petitioner had examined only another councillor of the Koduvally Municipality who was elected as an IUML candidate to state that she had contested and was elected as a UDF candidate. The copy of the minutes which are produced now as Exts.P9 and P10 were also not produced by the petitioner before the Commission. The Commission therefore considered the evidence let in before it and came to the conclusion that the petitioner had given a declaration to the Municipal Secretary that she was a UDF councilor. It was found that her candidature in the election and the declaration given before the Municipal Secretary were at variance and therefore Ext.P1 had been rendered. It is submitted that, in the light of the evidence let in by the parties before the Commission, the Commission could not have arrived at any different conclusion. The learned counsel for the respondent places reliance on a judgment of a Division Bench of this Court in W.A. No.1356/2022 dated 23.09.2022 in ``` WP(C) NO. 22480 OF 2017 ``` ``` 11 ``` support of his contentions. 12. The learned counsel appearing for the 2[nd] respondent would also contend that in case the petitioner had a specific case that she was the official candidate of the UDF, it was for the petitioner to have let in evidence to that effect before the Commission, and had such evidence been let in, it could have been considered by the Commission and rebutted by the 2[nd] respondent as well. 13. Having considered the contentions advanced, I am of the opinion that the finding of the Commission in Ext.P1 cannot be said to be perverse or illegal since the Commission had gone by the evidence let in before it. However, it appears from the judgment relied on by the learned counsel for the petitioner that in almost similar facts, this Court had set aside the finding of defection as against Sri.Sivadasan who had contested as an independent candidate with the support of the UDF. The judgment in W.A. No.1356/2022 was rendered in a different factual situation where the candidate who had contested the election as a completely independent candidate had thereafter submitted a declaration that he is a member of a coalition. ``` WP(C) NO. 22480 OF 2017 ``` ``` 12 ``` 14. In the instant case, it appears that the declaration in Ext.P1 is to be effective only till 08.06.2023. Therefore, the petitioner would not be faced with any prejudice by the declaration provided in Ext.P1 in any future elections. This Court while admitting this writ petition had passed an interim order permitting the petitioner to continue to function as a councillor of the Municipality subject to the condition that such continuance shall be without any right to vote in the meeting of the Municipality as also without any right to draw financial benefits as applicable to a councillor of the Municipality. It was also made clear that the petitioner shall not hold any official post in her capacity as a councillor of the Municipality. The learned counsel for the petitioner submits that the petitioner had continued to function as a councillor of the Municipality and had attended the sittings of the Municipality as well. It is submitted that in the light of the findings of this Court in Sivadasan’s case, which are applicable to the petitioner’s case as well, the petitioner would be entitled at least to draw the financial benefits applicable to the councillor of the Municipality. 15. In view of the fact that the disqualification of the petitioner as ``` WP(C) NO. 22480 OF 2017 ``` ``` 13 ``` ordered in Ext.P1 was on the basis of the evidence let in before the Commission and since the judgment in Sivadasan’s case relied on material, which had been placed before the Commission by the parties, I am of the opinion that it would not be justifiable for this Court to interfere with Ext.P1 order of the Commission. However, in view of the judgment in Sivadasan’s case and also the special circumstances pointed out by the learned counsel for the petitioner and in view of the fact that the petitioner had continued as a councillor of the Municipality on the strength of the interim orders of this Court, this writ petition is disposed of with a direction that the petitioner will be entitled to draw the financial benefits accruing to her as a councillor of the Municipality so long as she remained a councillor of the said Municipality. This writ petition is ordered accordingly. ``` Sd/- ``` ## **`ANU SIVARAMAN`** ## **`JUDGE`** ``` NP ``` ``` WP(C) NO. 22480 OF 2017 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 22480/2017`** |**`PETITIONER’S EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`A TRUE COPY OF THE ORDER DATED 09.06.2017 IN`**| ||**`O.P.NO.83 OF 2015 OF THE 1ST RESPONDENT.`**| |**`EXHIBIT P2`**|**`A TRUE COPY OF THE NOMINATION SUBMITTED BY`**| ||**`THE PETITIONER.`**| |**`EXHIBIT P3`**|**`A TRUE COPY OF THE CAMPAIGN NOTICE PUBLISHED`**| ||**`BY THE PETITIONER.`**| |**`EXHIBIT P4`**|**`A TRUE COPY OF THE RESULT SHEET OF WARD NO.12`**| ||**`OF KUDUVALLY MUNICIPALITY.`**| |**`EXHIBIT P5`**|**`A TRUE COPY OF THE SWORN STATEMENT GIVEN BY`**| ||**`THE PETITIONER UNDER RULE 3 (2) OF THE KERALA`**| ||**`LOCAL AUTHORITIES (PROHIBITION OF`**| ||**`DEFECTION)RULES.`**| |**`EXHIBIT P6`**|**`A TRUE COPY OF THE ORIGINAL PETITION (OP`**| ||**`83/2015) FILED BY THE 2ND RESPONDENT DATED`**| ||**`05.12.2015.`**| |**`EXHIBIT P7`**|**`A TRUE COPY OF THE OBJECTION FILED BY THE`**| ||**`PETITIONER IN O.P.83/2015 DATED 19.01.2016.`**| |**`EXHIBIT P8`**|**`A TRUE COPY OF THE MINUTES OF THE UDF`**| ||**`MEETING HELD ON 14.10.2015.`**| |**`EXHIBIT P9`**|**`A TRUE COPY OF THE MINUTES OF THE UDF`**| ||**`MEETING HELD ON 21.10.2015.`**| |**`Exhibit P10`**|**`A TRUE COPY OF THE RELEVANT PAGES OF`**| ||**`CERTIFIED COPY OF THE WRIT PETITION, WP(C)`**| ||**`NO. 13002 OF 2017 ALONG WITH EXHIBITS.`**| ``` RESPONDENTS’ EXHIBITS: NIL ```