IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 16784 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------- 1. LATHA THENGUMPATHRA, MAMBER, WARD NO.31 KOTTAYAM MUNICIPALITY, KOTTAYAM. 2. S. JAYAKRISHNAN, MEMBER, WARD NO.7 KOTTAYAM MUNICIPALITY, KOTTAYAM. 3. CHELLAMMA THAMPI, MEMBER WORD NO-3 KOTTAYAM MUNICIPALITY, KOTTAYAM. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): ------------------------- 1. K.R.G.WARRIOR,NARANATHU MANGALATHU WARIAM, MUTTAMBALAM,MUTTAMBALAM VILLAGE, KOTTAYAM 4. 2. THE STATE ELECTION COMMISSION, TRIVANDRUM. R1 BY GEORGE POONTHOTTAM R2 BY ADV.MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, ALONG WITH WPC. NO.17382 OF 2009 THE COURT ON 30/07/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.16784/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPLAINT FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT AS OP. 42/07. P2:- COPY OF THE COMPLAINT FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT AS OP. 43/07. P3:- COPY OF THE COMPLAINT FILED BY THE 3RD PETITIONER TO THE 2ND RESPONDENT AS OP.44/07. P4:- COPY OF THE OBJECTION FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE OBJECTION FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. P6 SERIES:- COPY OF THE OBJECTION FIELD BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT. P7:- COPY OF THE DECLARATION FILED BY THE IST PETITIONER P8:- COPY OF THE INTIMATION GIVEN BY THE IST RESPONDENT TO THE SECRETARY, KOTTAYAM MUNICIPALITY. P9:- COPY OF THE RECEIPT ALLEGEDLY SIGNED BY THE RESPONDENT IN OP. NO.42 /07 FILED BEFORE THE 2ND RESPONDENT. P10:- COPY OF THE MINUTES OF THE CONFIDENCE MOTION TAKEN ON 6.6.07. P11:- COPY OF THE PROCEEDINGS OF THE KOTTAYAM MUNICIPALITY HELD ON 2.3.07. P12:- COPY OF THE POSTAL RECEIPTS ACKNOWLEDGING THE WHIP ALLEGEDLY COMMUNICATED TO THE 2ND AND 3RD PETITIONERS. P13:- COPY OF THE LETTER RECEIVED FROM THE DEPARTMENT OF SPEED POST. P14:- COPY OF THE COVER SENT BY THE IST RESPONDENT WHICH WAS REFUSED TO ACCEPT BY THE 2ND PETITIONER. P15:- COPY OF THE COVER CONTAINING EXT.P11 WHICH WAS REJECTED BY THE 3RD PETITIONER. P16:- COPY OF THE LETTER DT. 10.3.07 ADDRESSED TO THE PRESIDENT, KOTTAYAM DCC. P17:- COPY OF THE LETTER DT. 9.5.07 SENT BY ONE K.M.IPE, VICE PRESIDENT OF THE KOTTAYAM DCC. W.P.(C) NO.16784/2009 P18:- COPY OF THE LETTER SENT BY SHRI. K.C.JOSEPH , MLA TO SMT. REEBA VARKEY. P19:- COPY OF THE MINUTES OF THE UDF PARLIAMENTARY PARTY CALLED FOR BY THE PETITIONERS. P20:- COPY OF THE DEPOSITION OF PW1 IN OPS FILED BEFORE THE 2ND RESPONDENT. P21:- COPY OF THE DEPOSITION OF PW2 IN OPS FILED BEFORE THE 2ND RESPONDENT. P22:- COPY OF THE DEPOSITION OF PW3 IN OPS FILED BEFORE THE 2ND RESPONDENT. P23:- COPY OF THE DEPOSITION OF RW1 IN OPS FILED BEFORE THE 2ND RESPONDENT. P24:- COPY OF THE DEPOSITION OF RW2 IN OPS FILED BEFORE THE 2ND RESPONDENT. P25:- COPY OF THE DEPOSITION OF RW3 IN OPS FILED BEFORE THE 2ND RESPONDENT. P26:- COPY OF THE DEPOSITION OF RW4 IN OPS FILED BEFORE THE 2ND RESPONDENT. P27:- COPY OF THE COMMON ORDER PASSED BY THE 2ND RESPONDENT IN OP. NOS. 42 TO 44/07. P28:- COPY OF THE NOTICE DT. 23/6/09 ISSUED BY THE KOTTAYAM CORPORATION. TRUE COPY P.A. TO JUDGE TSS THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.16784/2009-P & 17382/2009-P = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of July, 2009. JUDGMENT 1.These writ petitions are filed challenging the decision of the Kerala State Election Commission. As per the impugned common order, the three petitioners in WP(C).16784/2009 are held to be disqualified from continuing as members of the Kottayam Municipality on the ground that they have voluntarily given up the membership of the Indian National Congress, hereinafter referred to the as the “Congress”, a political party for the purpose of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The applications before the Election Commission leading to the impugned order were filed by the petitioner in WP(C).17382/2009. WP(C)16784 & 17382/09 -: 2 :- 2.The allegations levelled against the persons who stand disqualified were that they had violated a direction issued by Mr.Kuruvila Jacob who was the person authorised to issue whip. It is alleged that the said persons refused to obey the direction to vote in support of a no-confidence motion moved against Ms.Reeba Varkey, the then Chairperson of the Kottayam Municipality who also was declared to be disqualified by the Election Commission as per a separate order, which was affirmed by this Court in judgment dated 17th July, 2009 in WP(C).Nos.16297/2009 and 17362/2009. The plea that Mr.Kuruvila Jacob had the authority to issue the direction on behalf of the political party to which the persons belonged was found against by the Commission on the ground that Mr.Kuruvila Jacob, even according to him, was elected the Chief Whip of the UDF parliamentary party and not as the Chief Whip of the Congress parliamentary party thereby meaning that Mr.Kuruvila Jacob was not the person authorized by the parliamentary party, namely, the Congress to WP(C)16784 & 17382/09 -: 3 :- issue directions. Similar was the finding in the case of Ms.Reeba Varkey. After adverting to the different statutory provisions, it was categorically held that the power to issue a direction to a member of a political party can be exercised only by such an authority who is so nominated and authorised to give a direction on behalf of the political party and not a coalition, when the direction is alleged to have been breached by the member of the political party. Therefore, it having been established that Mr.Kuruvila Jacob had issued a whip as the chief whip of the UDF parliamentary party, which is not a political party, and it having not been established that he did so in terms of any authorisation of the political party, namely, the Congress, following the decision in Reeba Varkey's case, WP(C).16297/2009 and 17362/2009, the finding of the Election Commission on that count is only to be sustained. As a result, the contentions in WP(C).17362/2009 fail. WP(C)16784 & 17382/09 -: 4 :- 3.What is left for decision is the plea of the petitioners in WP(C).16784/2009 challenging the findings under Issue No.2(b) of the impugned order which is Ext.P27 in that writ petition. The Commission found that all the petitioners in that writ petition had admitted that they were elected to the Municipal Council as the official candidates of the Congress. The President of the Kottayam District Congress Committee was the person responsible to allot the official symbol of the party to its candidates standing for election to the local bodies in the district. The said persons contested with the symbol allotted to the Congress party. Exts.X-1, X-2 and X-3 were adverted to and considered by the Commission to hold that there was discontent against the Chairperson, Ms.Reeba Varkey and that a sub committee was constituted by the Congress to look into the issue and Ms.Reeba Varkey was directed to step down from the post of Chairperson, which she refused to comply. It was accordingly that the no- confidence motion was moved against her. Ms.Latha WP(C)16784 & 17382/09 -: 5 :- Thengumpathra, the first petitioner in WP(C). 16784/2009 had admitted before the Commission that she was one of the signatories to the no- confidence motion against Ms.Reeba Varkey. The Commission did not accept her testimony that she signed the no-confidence motion under threat since there was no corroborating material in support of that plea, particularly when she admitted that she had not filed any complaint to any authority against any person who allegedly threatened her. The writ petitioners in WP(C).16784/2009 did not vote in support of the no-confidence motion. They did not cast their vote at all. Therefore, those votes were declared as invalid. The Commission also found that there were contradicting contentions as to whether Sri.Jayakrishnan, another among the writ petitioners in WP(C). 16784/2009, was elected the whip of the Congress parliamentary party. The Commission found against that plea of Jayakrishnan. Assimilating the materials on record, the Commission concluded that it was the act of the petitioners in WP(C). WP(C)16784 & 17382/09 -: 6 :- 16784/2009 of having refused or failed to cast their vote, that led to the defeat of the no- confidence motion since voting in favour of such a motion is necessary for it being carried. The no- confidence motion having been moved against Ms.Reeba Varkey, owing to her dissent with the party decision requiring her to quit office, the abstinence of the petitioners in WP(C).16784/2009 from voting in support of that no-confidence motion is nothing but betrayal of the collective decision of the political party to which they belonged. This conclusion of the Election Commission is not open to criticism on the ground that such finding is wholly unavailable on the materials on record or that it is palpably perverse or wholly unreasonable. The said finding stands on the basis of the evidence tendered before the Commission. In the impugned order, the Commission has drawn the necessary inferences and has reached the legitimate conclusion. This Court in exercise of the jurisdiction under Article 226 does not sit as if it is a court of appeal against WP(C)16784 & 17382/09 -: 7 :- a decision of the Commission. The impugned decision cannot be treated as in any manner out of bounds of the jurisdiction of the Commission. The findings are also not vitiated by any legal infirmity or jurisdictional error in the matter of exercise of power. The challenge to the impugned decision on that count also fails. Resultantly, WP (C).16784/2009 also does not succeed. In the result, these writ petitions are dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/280709