IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 5469 of 2010(G) ------------------------- PETITIONER(S): --------------- OMANA CHELLAPPAN AGED 49 YEARS, W/O.CHELLAPPAN, MEMBER, WARD NO.3 PAYIPPADU GRAMA PANCHAYAT,RESIDING AT PALAKULANGARA HOUSE, NALUKODY PO,CHANGANACHERRY. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTION COMMISION THIRUVANANTHAPURAM. 2. SRI.MANOJ RAJAPPAN, KANAHATHU HOUSE PALLICAKACHIRA PO, PAY YIPPADU, CHANGANASSERI. (MEMBER WARD NO.6,PAYIPPAD GRAMA PANCHAYATH). ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.5469 of 2010 (G) --------------------------------- Dated, this the 22nd day of February, 2010 J U D G M E N T The petitioner challenges Ext.P2, the common order passed by the 1st respondent disposing of O.P.Nos.103/2008 and 118/2008 filed by the 2nd respondent under Section 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act. 2. Briefly stated, the facts of the case are that both the petitioner and the 2nd respondent herein were elected as members of the Payippad Grama Panchayat in the General Election held in September, 2005 as the official candidates of the Communist Party of India (Marxist) {CPI(M)} under the Left Democratic Front (LDF). The Panchayat has a total membership of 15, out of which 7 members, including petitioner and the 2nd respondent belong to LDF, 5 belong to United Democratic Front (UDF), 2 belong to Bharatiya Janata Party (BJP) and one is allegedly an independent. Soon after the election was held, one Ms.Lissamma Mathew, the aforesaid independent, was elected as the President and Mr.Thomas WP(C) No.5469/2010 -2- Mathew was elected as the Vice President. 3. Subsequently, no confidence motions were moved against the President and the Vice President. It is stated that these were scheduled for discussion on 01/07/2008. On 24/06/2008, the CPI(M) Parliamentary Party met and decided to vote against the no confidence motions and allegedly issued whip to all the party members in the Panchayat including the petitioner. It was alleged that though the petitioner received registered whip, she defied the whip and voted in support of the no confidence motions. Accordingly, the no confidence motions against the President and the Vice President were passed and both were voted out. The allegation in O.P.No.103/2008 filed by the 2nd respondent was against the stand taken by the petitioner in the meeting held on 01/07/2008 to discuss the no confidence motion, and according to the 2nd respondent that amounts to her voluntarily giving up her party membership of her political party. It was on this basis, the 2nd respondent contended that the petitioner incurred disqualification. 4. In so far as O.P.No.118/2009 is concerned, the case of the 2nd respondent was that the petitioner contested as President in WP(C) No.5469/2010 -3- the election held on 06/08/2008 against the official candidate of CPI(M) and LDF, and got elected with the support of rival UDF and BJP members. It was also alleged that the petitioner supported the nominee of the UDF in the Vice President's election held on the same day. By this conduct also, according to the 2nd respondent, the petitioner had voluntarily given up her membership of her political party and has incurred disqualification. 5. The parties contested the proceedings and the petitioner filed her objections. Evidence was adduced by both sides and in Ext.P2 order, detailed discussion has been made about the oral and documentary evidence adduced by both sides. 6. Dealing with Issue No.2, the Commission held that the 2nd respondent failed to establish the claim that he was competent to issue whip to the petitioner on behalf of CPI(M) Parliamentary Party, and that therefore the petitioner could not be found fault with for violating the whip issued by an incompetent person. However, appreciating the available evidence, the Commission concluded that overwhelming evidence supported the contention that Ms.Lissamma Mathew, the former President who was voted out, was elected to the WP(C) No.5469/2010 -4- Panchayat as an independent candidate supported by CPI(M) and LDF, and that she was the CPI(M) and LDF nominee for the post of President. Thereafter, dealing with the issue of the petitioner having voluntarily given up the membership of her party, the Commission held that the petitioner had, by her conduct on 01/07/2008, defected from CPI(M) and LDF and joined hands with UDF and BJP at the time of considering the no confidence motion. It was also found that her subsequent behaviour at the time of elections to the post of President and Vice President corroborates this conclusion, in as much as she had admitted that she contested for the post of President in the election held on 06/08/2008 and defeated the LDF nominee Ms.Lissamma Mathew. In arriving at this conclusion, the Commission also made reference to Ext.P8, the minutes of the meeting held on 06/08/2008, which showed that while the petitioner's candidature was proposed by the congress member from ward No.3 and supported by the BJP member from Ward No.10, it was shown that her opponent Ms.Lissamma Mathew was proposed and supported by LDF members. Thereafter, the petitioner was elected bagging 8 votes as against 7 votes bagged by WP(C) No.5469/2010 -5- Ms.Lissamma Mathew, from which it was concluded by the Commission that all five UDF and 2 BJP members voted in favour of the petitioner. From the facts and evidences, concluding that the petitioner is liable to be disqualified for voluntarily giving up her membership of the political party, the petitions were allowed by Ext.P2 order. It is challenging this order, this writ petition is filed. 7. The main contention raised by the learned counsel for the petitioner is relying on the judgment in Naseera Beevi v. State Election Commission (2004(1) KLT 1108). However, it is noticed that by judgment dated 13/07/2005 in W.A.No.1127/2004, judgment in Naseera Beevi's case has already been set aside by a Division Bench of this Court. It has been so stated in paragraph 8 of the judgment in Varghese v. Kerala State Election Commission (2009(3) KLT 1) 8. A reading of Ext.P2 order shows that it was appreciating the evidences adduced by both sides that the 1st respondent Commission came to the conclusion that Ms.Lissamma Mathew was the CPI(M) and LDF nominee to the post of President. Having regard to the voluminous evidences that were available before the 1st WP(C) No.5469/2010 -6- respondent and the manner in which the evidence is seen appreciated, I am unable to agree with the learned counsel for the petitioner that the conclusions in Ext.P2 order are against the evidence available or that the order is perverse for that reason. If this finding is accepted, necessarily, the petitioner, a CPI(M) member, voted against her political party and by that conduct, has voluntarily abandoned her membership in her political party. If so, consequently, she is liable to be disqualified, and the conclusion of the Commission in the order in O.P.No.103/2008 is unassailable. 9. Further even if this Court finds fault with the Commission for its conclusions in the order in O.P.No.103/2008, in my view, on admitted facts, the petitioner is liable to be disqualified in O.P.No.118/2008 . It is admitted in this case that the petitioner contested the election against the official nominee of the LDF, and she won bagging votes only of the UDF and BJP, and she also voted for the UDF candidate for the post of Vice President. In such circumstances, it is a clear case of voluntarily abandoning membership from the political party. This issue is also no more open to doubt in view of the judgments of this Court in Shajahan v. WP(C) No.5469/2010 -7- Chathannoor Grama Panchayat & Ors.(2000(2) KLJ 451), writ appeal No.2351/2005, Faisal v. Abdulla Kunhi (2008(3) KLT 534), Nazeerkhan v. Kerala State Election Commission & Another (2008 (3) KHC 322), which was affirmed by the Division Bench of this Court in Nazeerkhan v. Kerala State Election Commission & Another (2009(1) KHC 681 (DB)). Similar view has been taken by a learned Single Judge of this Court in Dharma Mani v. Parassala Block Panchayat (2009(3) KLT 29). In the light of the above principles laid down in these judgments, I cannot find fault in the order passed by the 1st respondent. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg