WP(C).Nos.15979/2015 & 15983/2015 – Nazeema and R. Padmanabhan v. Kerala State Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **WP(C).No.15979 OF 2015(V)** ## **PETITIONER/S:** **NAZEEMA, AGED 33 YEARS, W/O.ZIYAVUDHEEN, CHEERANI, MEMBER, WARD NO.13, KOLLENGODE GRAMA PANCHAYAT, KOLLENGODE P.O., PALAKKAD DISTRICT, PIN-678 506.** ## **BY ADV. SRI.J.S.AJITHKUMAR** ## **RESPONDENTS:** - **1 THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA STATE ELECTION COMMISSION, L.M.S.JUNCTION, PALAYAM, THIRUVANANTHAPURAM.** - **2 T.VISWANATHAN S/O.TEETHAN, THEKINCHIRAKALAM, NENMENI P.O., KOLLENGODE, MEMBER, WARD NO.7, KOLLENGODE GRAMA PANCHAYAT, KOLLENGODE P.O., PALAKKAD DISTRICT-678101.** **R1 BY SRI.C.A.MAJEED, SC, STATE ELECTION COMMISSION R1-2 BY ADV.SRI.M.SREEKUMAR** **R1 BY ADV.SRI.C.A.MAJEED, SC, STATE ELECTION COMMISSION** **BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2020, ALONG WITH WP(C)NO.15983/2015(W), THE COURT ON 19.11.2020 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **WP(C).No.15983 OF 2015** ## **PETITIONER/S:** **R.PADMANABHAN, AGED 43 YEARS, S/O.RAJAN, KACHAMKURISSY, MEMBER, WARD NO.16, KOLLENGODE GRAMA PANCHAYAT, KOLLENGODE P.O., PALAKKAD DISTRICT-678 506.** **BY ADV. SRI.J.S.AJITHKUMAR** ## **RESPONDENT/S:** |**1**|**THE KERALA STATE ELECTION COMMISSION,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA**| ||**STATE ELECTION COMMISSION, LMS JUNCTION, PALAYAM,**| ||**THIRUVANANTHAPURAM-695 035.**| |**2**|**T.VISWANATHAN, S/O.TEETHAN, THEKINICHIRAKALAM,**| ||**NENMENI P.O., KOLLENGODE, MEMBER, WARD NO.7,**| ||**KOLLENGODE GRAMA PANCHAYAT, KOLLENGODE P.O.,**| ||**PALAKKAD DISTRICT.**| **R1 BY SRI.C.A.MAJEED, SC, STATE ELECTION COMMISSION R1-2 BY ADV.SRI.M.SREEKUMAR** **BY SRI.MURALI PURUSHOTHAMAN, SC, KSEC BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2020, ALONG WITH WP(C).15979/2015(V), THE COURT ON 19.11.2020DELIVERED THE FOLLOWING:** =================================== W.P.(C).Nos.15979/2015 & 15983/2015 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ## J U D G M E N T ## Dated this the 19[th] day of November, 2020 These writ petitions were filed challenging the orders of the Election Commission disqualifying the petitioners as members of the Kollengode Grama Panchayat. The order was a common order of the Election Commission. 2. The petitioners, R.Padmanabhan and Nazeema were elected as the members of the Grama Panchayat as candidates of the Indian National Congress (INC) based on an election held in October 2010. 3. T.Viswanathan, who was elected as a member of the Grama Panchayat as an INC candidate along with the petitioners filed a petition to disqualify the petitioners as members of the Grama Panchayat alleging violation of the whip issued by the Congress party regarding election of President and Vice President of the Grama Panchayat on 24/7/2014 and for voluntarily giving up of their membership of Congress. Nos.15979/2015 & 15983/2015 -:2:- 4. It was alleged in the petition before the Election Commission that the District President issued whip to all the members to vote in favour of one K.Guruvayoorappan, a nominee for the Vice President. Padamanabhan, one of the petitioners herein was proposed by another member Prathibha. He got elected with the support of Left Democratic Front (LDF) to the post of Vice President in the election held on 24/7/2014. It is further alleged that the District Congress Committee decided not nominate anyone to the post of the President. However, Prathibha from the Congress stood as a candidate and, Padmanabhan and Nazeema proposed and seconded her candidature. It was further alleged that to help the nominee of LDF namely Radha, Padmanabhan did not sign the nomination paper of Prathibha, purposefully, resulting in rejection of the nomination of Prathibha. Accordingly, Radha was elected as the President. 5. The Commission found that the petitioners are liable to be disqualified on both the limbs referable under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection Act,) 1999 (hereinafter referred to as the 'Defection Act'). Nos.15979/2015 & 15983/2015 -:3:- 6. The learned counsel for the petitioner contended that there was no valid service of whip. The learned counsel placed reliance on the judgment of this Court in **George Elamplakkadu v. A.V.Mathew** [ **2020 (5) KLT 504]** to contend that without service of whip on the Secretary of the local authority, the petitioners cannot be disqualified based on the second limb of Section 3(1)(a) of the Defection Act for defying the whip. It is also contended that there was no evidence to attribute knowledge to the petitioners about the whip and party directives. 7. As seen from Ext.P13, a whip was issued by the President of DCC. That was acknowledged by the Secretary of the Grama Panchayat on 21/7/2014. One of the modes of service of the whip is by way of affixture. As seen from Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 service of whip by affixture is valid service provided it shall be done in the presence of at least two witnesses. Exts.X3 and X5 are the copies of the whip affixed on the petitioners' residences. It is seen that this was effected in the presence of two witnesses. Therefore, I am of the view that there was Nos.15979/2015 & 15983/2015 -:4:- service of whip on the petitioners. The whip clearly indicates that the Congress party has decided to nominate no one as a President candidate. However, the petitioners supported the candidature of Prathibha. Similarly, Padmanabhan stood against the candidature of Guruvayoorappan nominated by Congress Party. In such circumstances, I have to hold that the petitioners defied the whip as rightly found in the impugned order. 8. Next point is whether the petitioners can be disqualified for voluntarily giving up membership. The Election Commission relied on the oral evidence as well as documentary evidence to arrive at a conclusion that the petitioners were aware of the decision of the Congress party. The findings of the Election Commission are reflected at paras.15 to 17 of the common order. It has to be noted that the petitioners were aware of the election to the post of the President and Vice President. There was no evidence to prove that Padmanabhan was nominated by the Congress Party to contest as the Vice President. Exts.X3 and X5 are the copies of the whip produced before the Election Commission. As seen from the documents, there was Nos.15979/2015 & 15983/2015 -:5:- affixture of whip and affixture was proved. It is appropriate to refer para.17 of the impugned order which is as follows: _17. On a careful scrutiny of the above evidence and materials on record it is clearly found that these respondents along with the LDF members had entered into a conspiracy to oust the Vice President Sri.K.Guruvayoorappan and as a sequel to the same the LDF members moved the no confidence motions against the President and Vice President and by violating the direction and decision of the Congress party, the respondent in O.P.No.98/2014 resigned from the post of President and then all these respondents voted in favour of the no confidence motion along with the LDF members and thus ousted the Vice President. Thereafter in the election to the post of President and Vice President, these respondents along with the LDF members designed a plot whereby a member belonging to LDF was elected as President and the respondent in O.P.No.99/2014 became the Vice President by defeating the official Congress candidate and all these were done by disobeying the decision and direction of the Congress party. Ext.X2 which is the minutes of the meeting convened by the DCC President in respect of the election to the post of President and Vice President would reveal that the decision of the party was to abstain from the meeting convened for electing the President and Sri.K.Guruvayoorappan was decided as the candidate for the post of Vice President and from the evidence of PW3 and Exts.P14 series it is clear that the whip issued by the DCC President in this regard was communicated to all the respondents by way of affixture and that the respondents were fully aware of the above decision and direction of the DCC President. The issue is answered accordingly._ ## 9. As reflected from the above findings, the petitioners, in fact, supported no-confidence motion moved Nos.15979/2015 & 15983/2015 -:6:- by LDF members against the Vice President of Congress, Guruvayoorappan. This violation cannot be overlooked while considering the cause of action related to the petition for disqualification. It is not a case of a mere disobedience to the whip, the pattern of conduct of petitioners would clearly establish that the petitioners openly challenged the decision of the Congress Committee by voting in favour of no-confidence motion moved by LDF. The cause of action alleged has to be viewed with reference to the past conduct of the petitioners also. Therefore, the allegation that the petitioners violated whip issued for the meeting held on 24/7/2017 has to be viewed with reference to their past conduct. A Division Bench of this Court in **Nazeer v. Manikantan Nair [2015 (4) KLT 528]** held as follows: When a person acts against the interest of his political party and supports the stand taken by the opposite group and that too when the interest of his political party is clear and unambiguous, the action would be deliberate which would amount to disloyalty. 10. The Election Commission based on the oral evidence and documentary evidence came to the conclusion that the petitioners, by defying the decision of the Congress Committee on different occasions, committed an action Nos.15979/2015 & 15983/2015 -:7:- warranting disqualification under both the limbs of Section 3(1)(a) of the Defection Act. A Division Bench of this Court in **Lizy Valsalan v. Suja Salim and Another [2015 (3) KHC 968]** held that if the members act against the decision of the political party, they are liable to be disqualified for voluntarily giving up membership. 11. Further, the scope of interference under Article 226 is limited. Any decision on finding of facts based on the relevant facts and materials cannot be interfered invoking the power under Article 226. The writ petitions are only to be dismissed. Therefore, the writ petitions are dismissed. No costs. **==> picture [35 x 14] intentionally omitted <==** ## A.MUHAMED MUSTAQUE, JUDGE ms ## **APPENDIX OF WP(C)NO.15979/2015** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF O.P.NO.97/2014 PREFERRED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT PREFERRED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 19.5.2015 IN OP NOS.96/2014, 97/2014, 98/2014 AND 99/2014 OF THE 1ST RESPONDENT** ## **RESPONDENTS EXHIBITS:NIL.** **//TRUE COPY//** **P.S.TO JUDGE** ## **APPENDIX OF WP(C)NO.15983/2015** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF O.P.NO.99/2014 PREFERRED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT PREFERRED BY THE PETITONER. EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 19.5.2015 IN O.P.NOS.96/2014, 97/2014, 98/2014 AND 99/2014 OF THE 1ST RESPONDENT.** ## **RESPONDENTS EXHIBITS:NIL.** **//TRUE COPY//** **P.S.TO JUDGE**