IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WA.No. 1248 of 2011() --------------------- AGAINST THE ORDER IN WPC.19327/2011 DATED 01.08.2011 .................... APPELLANT: PETITIONER : ------------------------------------- DAISY TOMY, MEMBER WARD NO.5, PUTHENVELIKKARA PANCHAYATH, RESIDING AT KALLARAKKAL, ELANMTHIKKARA.P.O, PUTHENVELIKKARA, ERNAKULAM DISTRICT. BY ADV. MR. T.A.SHAJI MR. MANSOOR.B.H. RESPONDENTS: RESPONDENTS ---------------------------------------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 033. 2. ULLASAN, PATHIKKERIL, PUTHENVELIKKARA.P.O, ERNAKULAM DISTRICT. 3. THE PUTHENVELIKKARA GRAMA PANCHAYATH, PUTHENVELIKKARA, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY. R1 BY ADV. MR. MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R2 MR. GEORGE POONTHOTTAM R3 MR. P.P. THAJUDHEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/08/2011 ALONG WITH W.P(C) NO. 19327 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 1248 OF 2011 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A : CERTIFIED COPY OF THE INTERIM ORDER DATED 15.07. 2011 IN W.P (C) 19327 OF 2011. /TRUE COPY/ P.A. TO JUDGE J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1248 Of 2011 and W.P.(C) No. 19327 Of 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 22nd day of August, 2011 JUDGMENT J. Chelameswar, C.J. This Writ Appeal is preferred against the interim order dated 01st August 2011 in W.P.(C) No. 19327 of 2011. By the said order, an interim order granted earlier stood vacated. Hence the Appeal. 2. When the appeal came up for consideration today, with the consent of all the counsel appearing for the parties, the Writ Petition itself is taken up for hearing. 3. Heard Adv. Sri. T.A. Shaji - the learned counsel appearing for the petitioner / appellant, Adv. Sri. Murali Purushothaman - the learned standing counsel appearing for the first respondent / Election Commission, Adv. Sri. George Poonthottam - the learned counsel appearing for the 2nd respondent and Adv. Sri. P.P. Thajudheen - the learned counsel appearing for the 3rd respondent Panchayath. 4. The facts leading to the case are as follows : The writ petitioner and the second respondent in the Writ petition are members of the W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :2: Puthenvelikkara Grama Panchayath, having had been elected as such in an election held in October, 2010 for the above mentioned Grama Panchayath. The said Panchayath admittedly consists of 17 wards. Admittedly, in the said election eight candidates sponsored by the Indian National Congress, including the petitioner and the second respondent herein and one independent candidate supported by the said party, were elected as members of the Panchayath and collectively they are known as United Democratic Front (UDF). The other eight wards were backed by a coalition known as Left Democratic Front (LDF). The further details of the same may not be necessary for the present purpose. Admittedly, on 01.11.2010, a meeting of the above mentioned nine ward members of the UDF was convened and it was decided at the said meeting that one Smt. Sheena Sebastian of the above mentioned nine would be the Presidential candidate in the ensuing election for the Presidentship of the said Grama Panchayath and the second respondent herein to be the Vice Presidential candidate at the said election on behalf of the UDF. 5. Eventually, when the election took place, the writ petitioner offered herself as a candidate for the office of the Presidentship of the Panchayath, whose candidature interestingly was supported unanimously W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :3: by all the eight members of the LDF, thereby resulting in defeat of the above mentioned Smt. Sheena Sebastian. It is also an admitted fact that the second respondent, who was admittedly a candidate sponsored by the UDF at the said election for the post of the Vice Presidentship of the Panchayath, was also defeated. Admittedly, the appellant voted against the second respondent. 6. Thereafter the second respondent filed O.P. 50/2010 before the Kerala State Election Commission, a body constituted pursuant to the mandate of Article 243K of the Constitution of India, praying as follows : “A). To declare that the Respondent committed defection and hence she is disqualified to continue as member of Puthenvelikkara Grama Pachayath. B). To declare that the Respondent is disqualified for a period of 6 years to contest in any election to the local bodies. C). Such other reliefs this Hon'ble Commission deems fits for the proper disposal of the case.” 7. The second respondent sought such relief on the basis of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The relevant portion of the said Section reads as follows : 3. Disqualification on ground of Defection : (1) Notwithstanding anything contained in the Kerala Panchayath Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :4: the other provisions of this Act, --- (a) if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting, - (i) in a meeting of a Municipality, in an election of its chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or (ii) in a meeting of a Panchayath, in an election of a its President, Vice President, a member of a Standing Committee; or the Chairman of the Standing Committee; or in a voting on a no-confidence motion against any one of them except a member of a Standing Committee. (b) ....................... (c) ......................, he shall be disqualified for being a member of that local authority. Explanation : For the purpose of this section an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was set up as a candidate for the election. It can be seen from the above extract, Section 3 declares that a member of the local authority, belonging to any political party shall be disqualified for being a member of that local authority, if such a member (i) voluntarily gives up his membership of such political party (ii) votes or abstains from voting contrary to any direction in writing issued by any political party to W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :5: which he belongs to, in a meeting of a Panchayath either in the election of the President or Vice President or a member of the Standing committee or the Chairman of the Standing Committee (iii) or in a voting on a no- confidence motion specified in the said section. 8. Though the case of the second respondent is that the petitioner incurred disqualification on two counts i.e. (i) voluntarily giving up her membership of the political party and (ii) voting contrary to the directions of the political party, the Election Commission rejected the case of the second respondent in so far as the second of the above mentioned two grounds . However, the Election Commission accepted the first of the above mentioned two submissions of the second respondent, i.e. the petitioner has voluntarily given up her membership of the political party [Congress (I)] to which she belongs to and therefore by its order dated 13th July, 2011, allowed the petition filed by the second respondent. The relevant portion of the said order reads as follows : “16. .................................................. Therefore the question of violation of whip does not arise for serious consideration in this case. 17. From the discussion held above I hold that the respondent has committed defection by voluntarily giving up her membership from INC which set up her as a candidate and got elected as a W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :6: member of the Puthenvelikkara Grama Panchayath and thus incurs disqualification as provides by Section 3 of the above act. So she is liable to be disqualified for being a member of the local authority as prayed for. The points are answered accordingly. 18. In the result, the petition is allowed and the respondent is declared as disqualified for being a member of Puthenvelikkara Grama Panchayath as provided by Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act and she is disqualified for contesting as a candidate in an election to any local authority for six years from this date as provided by Section 4 (3) of the above Act. Hence the Writ Petition. 9. The learned counsel for the appellant Sri. T. A. Shaji strenuously argued that the decision of the Election Commission in coming to the conclusion that the petitioner has voluntarily given up her membership of the political party which she belongs to is wholly erroneous. According to the learned counsel, the exercise of the electoral right of the petitioner, either to contest the office of the President of the Panchayath or to vote according to the consensus of the petitioner at such an election, either of the President or Vice President, in the absence of any specific direction in writing by the political party to which she belongs to cannot be said to be the activities leading to the inference that the petitioner had voluntarily W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :7: given up her membership of the political party to which she belonged. The learned counsel further submitted that the three decisions of this Court in 2009 (3) KHC 42 (Varghese V.V. Vs. KSEC), 2008 (3) KHC 267 (Faisal Vs. Abdulla Kunhi) and an unreported decision in W.A. 2351 of 2005 relied upon by the Election Commission for coming to the conclusion that the petitioner incurred the disqualification under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, on the ground that, the petitioner had voluntarily given up her membership of the political party to which she belonged to, requires a reconsideration. According to the learned counsel, the said judgments did not lay down the correct position of law. In support of his submission, the learned counsel relied upon a decision reported in 2010 (3) KLT 426 (Chinnamma Varghese Vs. State Election Commission), to which one of us [JC (CJ)] was a member. 10. On the other hand Sri. George Poonthottam, the learned counsel appearing for the second respondent submits that, the impugned order is perfectly within the parameters established by the law declared by the Apex Court in 1994 Supp (2) SCC 641 (Ravi S. Naik Vs. Union of India) and 2008 (4) SCC 747 (Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council). The learned counsel for the W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :8: second respondent also submitted that the later decision reported in 2010 (3) KLT 426 (cited supra) has nothing to do with the question that arises for consideration in the instant appeal, therefore, the reliance sought to be placed by the learned counsel for the petitioner is wholly misplaced. 11. The facts are not in dispute. The only question of law, which arises for our consideration is that, what is the meaning to be ascribed to the expression “voluntarily giving up his membership” occurring under Section 3 (1) (a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The substance of the three decisions of this Court relied upon by the Election Commission is that, it is not necessary that a member of a political party (elected to a local body, having been sponsored by that political party) need either resign or vote in contravention of a whip issued by the political party to be described as having voluntarily given up his membership of the said political party. There can be other contingencies in which it can be inferred form the conduct of such a person that the person had voluntarily given up his membership of the political party. We do not find any reason, which requires a reconsideration of the correctness of the above mentioned three judgments, in view of the law declared by the Supreme Court in 2004 (8) SCC 747 . It was a case, where the petitioner W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :9: before the Supreme Court was elected as a member of the Bihar Legislative Council as a candidate of the Indian National Congress. But, subsequently in an election to the Fourteenth Lok Sabha, the petitioner contested from Maharajganj Parliamentary Constituency of Bihar as an independent candidate. Thereupon a complaint came to be lodged before the Chairman of the Legislative Council to the effect that the petitioner had voluntarily given up his membership of the congress party and therefore disqualified for being a member of the Legislative Council of the Bihar. By the order dated 26.06.2004, the Chairman of the Legislative Council accepted the petition and declared that the petitioner before the Supreme Court did incur disqualification as contemplated under Paragraph 2 (1) (a) of the Tenth Schedule of the Constitution of India, on the ground that, he had voluntarily given up the membership of the political party, to which he belonged to and therefore disqualified to be a member of the Legislative Council of the Bihar. The Supreme Court affirmed the conclusion reached by the Chairman of the Legislative Council of Bihar. In Paragraph 11 of the judgment it was held as follows : 11. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of Indian National Congress but he contested the parliamentary election as an W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :10: independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation, there can be no escape from the conclusion that the petitioner has incurred the disqualification under Paragraph 2 (1) (a) of the Schedule and the decision of the Chairman is perfectly correct. 12. It can thus be clearly seen that not only in the cases of resignation or defiance of a direction (whip) given by the political party that the person can be said to have voluntarily given up his membership of the political party, but there can also be other circumstances, from which such an inference can be legitimately drawn. 13. Coming to the decision reported in 2010 (3) KLT 426 (cited supra), as rightly pointed out by the learned counsel appearing for the second respondent, it was a case where the dispute is regarding the disqualification of a person, who admittedly was elected as an independent candidate, but by a statutory fiction became a member of a coalition, as defined under Section 2 (2) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The said case was decided not on the interpretation of the expression of 'voluntarily giving up the membership of a political W.A No. 1248 of 2011 and W.P.(C) No. 19327 of 2011 :11: party', but on the principle that the pleadings were wholly inadequate to establish the necessary cause of action. Therefore the said decision is clearly not applicable to the question involved in this appeal and in no way advances the case of the petitioner nor lay down any principle of law which is inconsistent with the principle of law laid down in the three decisions of this Court relied upon by the Election Commission. In the said circumstances, we see no merits in the Writ Petition and the same is therefore dismissed. Consequently the Writ Appeal also dismissed. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd