W.P.(C) Nos. 30341, 30350, 30366, 30380, 30407 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933** ## **WPC.No. 30341 of 2011 (P)** **-------------------------** **PETITIONER** **-----------------** **C.S.YESODHARAN,S/O.SREEDHARAN AGED 47 YEARS, PRESIDENT AND MEMBER, WARD NO.3 PAMPADUMPARA GRAMA PANCHAYATH, IDUKKI DIST** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH SMT.DHANYA CHANDRAN** **RESPONDENTS:** **-----------------------** **1. KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM-695001** **2. SRI TOMY THOMAS, CHAIRMAN, STAnDING COMMITTEE FOR DEVELOPMENT, MEMBER WARD, NO.16 PAMPADUMPARA GRAMA PANCHAYATH, IDUKKI DIST 685556** **R,R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R,R2 BY SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2012, ALONG WITH WPC. 30366/2011, WPC. 30380/2011, WPC. 30407/2011 & W.P.C 30350/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC.No. 30341 of 2011 (P)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **P1 COPY OF THE PETITION FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT PRAYING TO DISQUALIFY THE PETITIONER** **P2 COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P10** - **P3 COPY OF THE COMMON ORDER OF THE 1ST RESPONDENT DATED 9-11-2011** ## **RESPONDENTS EXHIBITS** ## **NIL** **TRUE COPY** **P.A. TO JUDGE** ## **SMM** ## **V.CHITAMBARESH,J.** = = = = = = = = = = **W.P.(C) NOS. 30341,30350, 30366,30380,30407 OF 2011** = = = = = = = == = = = = = Dated this the 8th day of February, 2012 ## J U D G M E N T The petitioners have been declared as disqualified for being members of a Grama Panchayath under the Kerala Local Authorities ( Prohibition of Defection)Act,1999 ('the Act' for short. Ext.P3 produced in the writ petitions is the common order so passed by the Kerala State Election Commission ('the Commission ' for short) in terms of the Section 3 of the Act. The petitioners impugn Ext.P3 on the ground that there has not been any defection so as to incur disqualification under the Act. 2. The election to the Pampadumpara Grama Panchayath was held on 27-10-2010. The petitioners contested in the Congress (I) party ticket. The Congress ( I) Party was a constituent of an United Democratic Front. The United Democratic Front secured 11 seats and the Left Democratic Front secured 3 seats. One seat was won by an **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 2 independent and another seat by an independent supported by Bharatiya Janata Party . 3. The Election to the President and Vice President of the Grama Panchayath took place on 8-11-2010. The petitioner in W.P.(C) No. 30341/2011( by name Yesodharan) was elected as the president. He secured 7 votes where as another candidate (by name Sreemandiram Sasikumar) secured 6 votes. The candidate of Left Democratic Front (by name Shijumon Iype) secured 3 votes. One Tomy Thomas who is the second respondent in all these writ petitions moved the Commission alleging defection by the petitioners. He contended that Sreemandiram Sasikumar was the official candidate of Congress(I) party. He further contended that the petitioners instead of voting for Sreemandiram Sasikumar, voted in favour of the petitioner in W.P.C. No.30314/2011(Yesodharan). This according to the second respondent, incurs disqualification for the petitioners in terms of Section 3 of Act. **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 3 4. The second respondent has yet another contention that there was defection during the election of Vice President too. The second respondent contended that the petitioners had voted for the candidate belonging to the Kerala Congress (Mani). But many of the Congress(I) candidates voted in favour of an independent (by name Jancy George). However Smt. Sreelatha who was the official candidate of United Democratic Front won the election as the Vice President of the Grama Panchayath. The candidate belonging to the Left Democratic Front (by name Shobana Vijayan) was also in the election fray. 5. The petitioners contended that they had not voted in favour of the candidate belonging to any rival party or coalition. They contended that they form a group by themselves the same Congress(I) Party. It so happened that the independent candidate who won by the Bharatiya Janatha Party support also voted in their favour. Their contention in essence is that only if they cross vote to a rival **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 4 party or coalition would they incur disqualification . The selection of a candidate to the post of President of the Grama Panchayath from among the same party members is not a defection at all. 6. The second respondent contended that the Congress (I) party had issued a whip to all the party members. He further contended that he was the elected whip of the Parliamentary Party. The Congress(I) party had decided to support Sreemandiram Sasikumar in the election to the post of President. The petitioners being fully aware of this decision violated the party dictates. They purposefully voted in favour of Yesodharan which amounts to voluntarily giving up membership of the political party. The second respondent asserted that the order of the Commission is rested on evidence and does not suffer from any infirmity in law. 7. The Commission after analysing the evidence has found that there is no whip issued by the Congress (I) party. **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 5 It necessarily follows that there is no violation of whip as contended by the second respondent. But the question is whether their conduct amounts to voluntarily giving up membership of the political party. The District President of the Congress(I) Party was examined as PW2. The District Secretary of the Congress(I) party was examined as PW4. He proved Ext.X1 minutes of the Parliamentary Party. Ext.X1(a) is the minutes of the Parliamentary Party meeting on 10-11-2010. Ext.X1(b) is the minutes of the Parliamentary Party on 8/7/2011. It is discernible from Ext.X1(a) minutes that they sought the opinion of the Congress (I) party about the candidate to be supported. Ext.X1(b) minutes reflect that the decision of the Congress (I) Party to support Sreemandiram Sasikumar. was intimated to all party members. 8. The petitioner in W.P.C.No..30366 /2011 by name Tomy Joseph has been examined as RW1 before the Commission. He concedes that the District Secretary of **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 6 Congress(I) has been empowered to oversee the election to the members of President. The finding of the Commission that there was a decision of the Congress(I) Party to support Sree mandiram Sasikumar is well founded . The Commission has believed PW2 and PW4 and relied on Exts.X1(a)and X1(b) to conclude about the stand taken in the Parliamentary Party meetings. 9. The next question is as to whether the action of the petitioners in not voting for Sreemandiram Sasikumar amounts to voluntarily giving up membership of the political party. The fact that they did not vote in favour of Sreemandiram Sasikumar is well conceded. An inference that they have voluntarily given up membership of the political party can be well drawn from their conduct. Added to this is the fact that they were supported by an independent candidate who won by the support of Bharatiya Janata Party. Needless to mention that Bharatiya Janata Party is not even a constituent of United Democratic Front. **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 7 The finding of the Commission is in tune with the settled decisions of this court which are as follows. i) **Nazeer Khan Vs. Kerala State Election Commission and Another (2008 (2) KLJ 916)** ii) **Faisal P.A vs K.A Abdulla Kunhi and Another (2008 (3) KLT 534)** iii) **Biju R.S and Others vs. State Election Commission and Others (2009 (3)KLT 29)** iv) **Chinnamma Varghese vs . Kerala State Commission and Others (2010 (3) KLT 426.)** v) **Varghese V.V. And another vs. Kerala State Election Commission and Another (2009 (3) KLT 1)** vi) **Muhammedkunhi B. and Another vs. K. Abdulla and Another (2010(4) KHC 307)** 10. The petitioners contend that even now they belong to Congress(I) party only. They further contend that they have voted in favour of the candidates belonging to the United Democratic Front in the Standing Committee **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 8 Elections. Such remorseful conduct on their part would not rescue them from the disqualification already incurred. Reference in this connection to the decision in ( **2009 (3) KLT page 1)** is apposite. The finding of the Tribunal that they did not vote in favour of Sreemandiram Sasikumar as directed by the Congress(I) Party is based on evidence. The further observation that the petitioner in W.P.C No. 30341/2011 won the election to the post of President with the unethical alliance with Bharatiya Janata Party is also justified . There has been a defiant attitude on the part of the petitioners in not voting for the candidate as directed by the Party to which they belonged . The mere fact that the petitioners chose yet another person within their party would not come to their shelter. These facts indicate that they have voluntarily given up membership of the political party to which they belongs by their conduct. The Commission has disqualified the petitioners on account of defection in terms of Section 3 of the Act and Ext.P3 order **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 9 does not suffer from any infirmity. It is hence unnecessary for me to delve deep into the question of election to the post of Vice President in these cases. I have already found that the petitioners have incurred disqualification in the election to the post of the President of the Grama Panchayath. The writ petitions fails and are dismissed V.CHITAMBARESH. JUDGE smm **W.P.(C) NOS. 30341,30350,30366 30380,30407 OF 2011** 10