IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 28782 of 2009(P) --------------------------------------- PETITIONER: ------------------- SRI.P.A. REMANAN, S/O. AYYAPPAN, AGED 43 YEARS, MEMBER, WARD NO.7,KUMBALANGI GRAMA PANCHAYAT, RESIDING AT PUTHENCHIRAYIL HOUSE, KUMBALANGI, KOCHI, ERNAKULAM DISTRICT. BY MR. M.R.RAJENDRAN NAIR, SENIOR ADVOCATE, ADVS. MR.M.R.SUDHEENDRAN, MR.M.R.HARIRAJ, MR.T.A.GEORGE JOSEPH, MR.P.A.KUMARAN, MR.SURAJ.S, SMT.VINITHA B. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. SRI.M.P. RATHAN, MEMBER, WARD NO.1, KUMBALANGI GRAMA PANCHAYAT, KOCHI, ERNAKULAM – 682 007. R1 BY MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN., R2 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. MR.M.SREEKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON 05/11/2009 DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.28782 of 2009-P = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of November, 2009. JUDGMENT 1.Petitioner challenges the decision of the State Election Commission deciding that he has become subject to the disqualification under Section 3 (1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, hereinafter referred to as the “Act”, on the ground that he, a member of the Kumbalangi Grama Panchayat, a local authority, belonging to the political party Congress-I, has voluntarily given up his membership of such political party. By that order, he has ceased to be a member of that local authority from the date of the impugned decision and stands disqualified for contesting as a candidate in an election to any local authority for six years from that date, by the operation of Section 4(3) of the Act. WPC28782/09 -: 2 :- 2.The election to the post of Vice President of the Panchayat was scheduled to be held on 15.1.2009. The second respondent lost to the petitioner in that election. The second respondent applied to the Commission for its decision on the issue by contending that the petitioner acted contrary to the direction, in writing, issued by political party to which the petitioner belonged, to vote for the second respondent in the election of the Vice President and that by contesting against the second respondent, the official candidate of Congress-I, defying the directions of the party, the petitioner has expressly declared that he has voluntarily given up membership of that political party. In the impugned order, the Commission found that the alleged direction stated to have been issued by the President of the District Congress Committee, was not proved or marked as a piece of evidence by the second respondent. Accordingly, the plea that the petitioner had violated the direction given, in writing, was found against. However, assimilating the WPC28782/09 -: 3 :- materials on record, the Commission concluded that the petitioner had voluntarily given up his membership of the political party Congress-I and accordingly stands disqualified. 3.Challenging the aforesaid findings to the extent they are against the petitioner, the learned senior counsel appearing for him argued that the materials on record clearly show that there was no direction by the political party Congress-I that the petitioner shall not contest the election nor that he should vote for the second respondent. It was further argued that the plea of the second respondent regarding the issuance of direction having been found against, it ought to have been held that the materials otherwise available on record, referable to the incident of 15.1.2009, were wholly insufficient to conclude that the petitioner is disqualified on ground of having voluntarily given up his membership of the political party to which he belonged. More importantly, it was pointed out that P.W.2, the WPC28782/09 -: 4 :- Parliamentary Party Whip of the Congress-I, had issued Ext.P4 on 21.1.2009, i.e., after the conduct of the petitioner in having successfully contested the election to the post of Vice President. Referring to Ext.P4, it was argued that the issuance of such a whip by treating the petitioner as a member of the political party, Congress-I, essentially concludes that the political party treats the petitioner as one who is continuing as a member and as a part of the political party. Therefore, according to the petitioner, the plea of the second respondent ought not to have been countenanced because, the political party, Congress-I, had never treated the petitioner, even after the incident of 15.1.2009, as not belonging to the Congress-I. The learned senior counsel pointed out that the petitioner did not have an opportunity to put Ext.P4 on record before the Commission and ends of justice require that the petitioner be given a further opportunity to put that material on record. He accordingly sought a direction to the WPC28782/09 -: 5 :- Commission to re-consider the matter in the light of Ext.P4. 4.The learned senior counsel appearing for the second respondent argued that within the parameters of jurisdiction under Article 226, this Court will not exercise its visitorial jurisdiction as if it is sitting in an appeal over the decision of the Commission and the question of remit to admit Ext.P4 on record and consider it, does not arise. He further pointed out that the findings of the Commission stand by themselves and the inference drawn relates to the incident of 15.1.2009 and matters ancillary thereto; emanating out of the materials on record before the Commission. He, accordingly, argued that there is no error of jurisdiction or legal infirmity warranting interference by the writ court. 5.The learned standing counsel for the Commission has made available the records in the case. WPC28782/09 -: 6 :- 6.P.W.2 is Jose Pazheri, who is shown to have issued Ext.P4 relied on by the petitioner. A reading of of his proof affidavit and the evidence recorded in cross examination would show that he was, in no manner, confronted with the situation which led to the issuance of Ext.P4 or its contents. 7.The learned senior counsel for the petitioner candidly stated that he would not urge this Court to consider the evidentiary value of Ext.P4 and reverse the decision of the Commission because, what is in hand is not an appeal but is a writ petition under Article 226. The learned senior counsel appearing for the second respondent is justified in stating that nothing stood in the way of the petitioner bringing on record Ext.P4 before the Commission. Even an appellate court would not make an order of remit, if it is not satisfied that the material sought to be placed on record after remand, deserved admission and is WPC28782/09 -: 7 :- of evidentiary value which would have had some bearing on the matter in issue. Nevertheless, to exclude any controversy in that regard and to settle the matter finally, I deem it appropriate to look at Ext.P4. This would also ensure that the conclusion in this judgment is not arrived at by eschewing any material that the petitioner has to offer. 8.With the aforesaid in mind, reading Ext.P4; what it states is that the petitioner, who had won in the election to the Panchayat as a Congress-I candidate with “palm” as a symbol, has to take necessary steps to ensure that the no confidence motion being tabled on 29.1.2009 against John Pazheri is defeated. The last paragraph of Ext.P4 states that if the petitioner is still retaining his membership in Congress, he has to strictly comply with the direction to do the needful to defeat the no confidence motion; otherwise, it would be taken that the petitioner had even earlier ( mumbinaale ) given up his membership of WPC28782/09 -: 8 :- the Congress Party and steps would be continued ( thudarunnathaanu ) against the petitioner in that regard. Reading that document, it is impossible to reach the conclusion that the same was issued by P.W.2 John Pazheri on behalf of the political party Congress-I, treating the petitioner as within the fold of that political party. It was only a clear and categoric instruction to the petitioner to behave or to face consequences for even prior conduct. This is how the last paragraph of Ext.P4 appeals. Therefore, even if Ext.P4 was on record, the end result of the decision that the Commission would have rendered, could not have been different. 9.The learned senior counsel for the petitioner referred to the judgment of the Apex Court in Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305, to state that the relevant date for deciding questions is the date on which the member voluntarily gives up membership. This was to drive home the argument that even on WPC28782/09 -: 9 :- 21.1.2009, Ext.P4 was issued prescribing the conduct to be followed on 29.1.2009. But, as already noticed, the tenor of the said document is not merely a whip but is a clear indication to the petitioner that his prior conduct has not been condoned. 10.Learned senior counsel for the second respondent referred to the decision of this Court in Varghese v. Kerala State Election Commission, 2009 (3) KLT 1, in particular, paragraph 10 of that judgment, to state that the issuance of a subsequent communication by the political party does not, in any manner, wipe off the disqualification incurred earlier, on ground of defection. In further support, Dharma Mani v. Parassala Block Panchayat, 2009 (3) KLT 29, was referred. Those decisions essentially have a bearing on the issue. But even beyond that, is the conclusion arrived at above; that on the undisputed facts, even if Ext.P4 is looked into, the same would not have had any impact on the WPC28782/09 -: 10 :- conclusion which has been reached otherwise, by the Commission in the impugned order. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/041109