IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 29088 of 2007(K) ------------------------------------- PETITIONER: ----------------- P.A.FAISAL, KUDIRIL HOUSE, MOGRAL PUTHUR P.O., KASARAGOD DISTRICT, MEMBER, WARD NO.1, MOGRAL-PUTHUR GRAMA PANCHAYATH, KASARAGOD. BY ADV. SRI.M.SASINDRAN RESPONDENTS: ----------------------- 1. K.A.ABDULLA KUNHI, MADAVOOR HOUSE, KODLU P.O., KODLU VILLAGE, KASARAGOD DISTRICT. 2. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, RPERESENTED BY ITS SECRETARY. BY ADV. SRI.S.SANTHOSH KUMAR - R1 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM -R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).29088/2007-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION IN O.P.44 OF 2006 OF THE STATE ELECTION COMMISSION THIRUVANANTHAPURAM. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.44 OF 2006. EXT.P3: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE STATE PRESIDENT OF THE MUSLIM LEAGUE. EXT.P4: COPY OF THE ORDER DATED 29/09/2007 IN O.P.44 OF 2006 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF LETTER ISSUED BY GENERAL SECRETARY OF THE MUSLIM LEAGUE KASARAGAODE DIST. COMMITTEE, M.C.KAMARUDHEEN. EXT.R1(b): COPY OF LETTER DATED 22/10/2005 TO THE PETITIONER. EXT.R1(c): COPY OF MINUTES OF MEETING OF PARLIAMENTARY PARTY OF IUML MOGRAL PUTHUR GRAMA PANCHAYAT, DATED 18/02/06 AND 04/04/2006. EXT.R1(d): COPY OF LETTER DATED 10/05/06 SENT BY IUML MOGRAL PUTHUR GRAMA PANCHAYAT. EXT.R1(e): COPY OF LETTER DATED 30/06/2006 TO THE PETITIONER. EXT.R1(f): COPY OF WHIP DATED 21/08/2006. EXT.R1(g): COPY OF MINUTES OF MEETING HELD ON 30/08/2006. EXT.R1(h): COPY OF MINUTES OF PANCHAYAT COMMITTEE MEETING DATED 19/09/2006 RELATING TO P.R.NO.115(19) EXT.R1(i): COPY OF MINUTES OF PANCHAYAT COMMITTEE MEETING DATED 25/10/2006 RELATING TO P.R.NO.138. EXT.R1(j): COPY OF MINUTES OF PANCHAYAT COMMITTEE MEETING DATED 13/12/2006 RELATING TO P.R.NO.161. EXT.R1(k): COPY OF MINUTES OF THE MEETING DATED 10/05/2007. // TRUE COPY // Rs/ ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 29088 of 2007 -------------------------------------------------------- Dated: JUNE 26, 2008 JUDGMENT Ext.P4, an order passed by the 2nd respondent exercising its power under sec.4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 declaring that the petitioner herein shall cease to be a member of the Mogral Puthur Grama Panchayat from 29.9.2007 onwards and is disqualified from contesting as a candidate in the election to the local bodies for a period of six years from 29.9.2007 onwards, is under challenge in this writ petition. 2. The petitioner contested election as an Indian Union Muslim League candidate and was elected as a member of the Mogral Puthur Grama Panchayat. He was also elected as the President of the said Panchayat in September 2005. There were 14 members in the Panchayat and 7 of them belonged to the Muslim League, 5 belonged to the BJP, 1 to Congress and 1 to Indian National League. WP(C) 29088/07 2 3. It is stated that by Ext.P3 dated 30.6.2006 produced before the State Election Commission in OP 44/2006, the Kasargode District Secretary of the Muslim League directed the petitioner to resign from the Presidentship of the Panchayat. He disobeyed that direction and continued as President. Subsequently, a No Confidence Motion was moved by his own party colleagues against him and despite the whip for being present in the meeting and to vote in support of the No Confidence Motion, petitioner remained absent in the meeting held on 30.8.2006. In the meeting all the 6 Muslim League members supported the No Confidence Motion, but the No Confidence Motion was defeated with the support of the BJP and INL members. 4. The petitioner continued as the President of the Panchayat and thereupon the 1st respondent herein filed Ext.P1 petition before the 2nd respondent contending that the petitioner had disobeyed the whip and had voluntarily given up his membership in his political party and therefore was disqualified under sec.3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The petition was registered as O.P. WP(C) 29088/07 3 44/2006 and notices were issued. Petitioner entered appearance and filed his written statement (Ext.P2). Evidence, both oral and documentary, was tendered by both sides and finally the 2nd respondent by Ext.P4 order declared that the petitioner shall cease to be a member of the Panchayat from 29.9.2007 onwards and held him to be disqualified from contesting as a candidate in the election for a period of six years from the aforesaid date. It is challenging this order, the writ petition has been filed. 5. A reading of Ext.P4 order shows that the allegation that the petitioner had disobeyed the whip and had absented in the meeting held on 30.8.2006 to discuss the No Confidence Motion has been found in his favour. His disqualification is only on the conclusion that he had voluntarily given up his membership of Indian Union Muslim League, the party to which he belonged. 6. Learned counsel for the petitioner mainly contends that the finding in Ext.P4 order of the 2nd respondent that the petitioner had voluntarily given up his membership in the party is erroneous. It is contended that the direction issued by the District Secretary of the Muslim League did not have the support WP(C) 29088/07 4 of either the parliamentary party or the State Leadership. It is stated that pointing out the illegalities in the direction issued to him to resign the Presidentship, the petitioner had filed Ext.P3 appeal before the State President of the Muslim League and that the appeal was still pending. Referring to Ext.P3, learned counsel submits that in the appeal, the petitioner has, in very clear terms, expressed his desire to continue as a humble worker of the Muslim League and requested that he be allowed to complete his full tenure as the President of the Panchayat. He would therefore submit that Ext.P3 issued at the instigation of the 1st respondent, was invalid and that at any rate, in view of the pendency of the appeal, he could not have been held to have voluntarily given up his membership of his political party. 7. Learned counsel for respondents 1 and 2 would contradict the contentions raised by the petitioner. According to the 1st respondent, Ext.P3 was issued with the approval of the party leadership and the petitioner admittedly had disobeyed the same. It is submitted that, from the conduct of the petitioner, the irresistible conclusion was that he had voluntarily given up his membership in the party. Learned counsel for the 2nd WP(C) 29088/07 5 respondent also supports this contention and would submit that the position canvassed by the petitioner is concluded against him by the Apex Court judgment in Rajendra Singh Rana & Ors. v. Swami Prasad Maurya & Ors. AIR 2007 SC 1305 and of this court in Shajahan v. Chathannoor Grama Panchayat & Others - 2000(2) KLJ 451. 8. I have considered the submissions made by the counsel on either side. 9. The only issue that arises for consideration is whether the petitioner has rendered himself liable to be disqualified on the ground that he had voluntarily given up his membership of the political party to which he belongs, under sec.3(1)(a) of the Act. The fact that the petitioner belonged to Indian Union Muslim League and fought and won the election to the Panchayat under that banner is not in dispute. It is also not in dispute that he was elected as President of the Panchayat as a Muslim League candidate. It is a fact that he was issued Ext.P3 direction by the Kasargode District Secretary of the Muslim League, who was examined as PW.2 before the 2nd respondent. It is also not in dispute that the petitioner did not resign as directed, but, on the WP(C) 29088/07 6 other hand, his contention is that the direction issued did not have any legal sanctity. 10. A reading of Ext.P4 order shows that his conduct in disobeying the aforesaid direction has been taken note of by the Election Commission as one of the circumstances to conclude that the petitioner has voluntarily given up his membership in his political party. The Election Commission has also taken note of the fact that the remaining six members of the party to which he belonged had expressed no confidence in him. It was also noticed that in the meeting held on 30.8.2006 six members of the opposition voted against the no confidence motion and in his support, although the petitioner was absent in that meeting. It has also taken note of the minutes of the meeting held on 19.9.2006 which showed that the UDF members were on the one side and that the President was aligning himself with the opposition. The fact that the petitioner had voted along with the members of the opposition was admitted by him in the course of the evidence that was let in before the Commission. The Commission has also taken note of the petitioner's conduct on 25.8.2006. Taking note of all the evidence thus available, the WP(C) 29088/07 7 Commission came to the following conclusion:- “But an analysis of the evidence given above clearly show that he has flouted the direction issued to him by the competent authority of the party, that he has acted against the interest of the party, that he was hobnobbing with the members belonging to the opposition and that he has taken decisions contrary to the wishes expressed by all the other members of the UDF. Hence it can be safely inferred from the subsequent conduct that he has voluntarily given up the membership of the party. Hence he is liable to be disqualified under the Act.” 11. Thus it can be seen that it was taking note of the conduct of the petitioner spanning over a period of time that the Commission has inferred that the petitioner had voluntarily given up his membership in Muslim League, the political party to which he belonged. In Shajahan v. Chathannoor Grama Panchayat & Others - 2000 (2) KLJ 451, after referring to the Apex Court's judgment in Ravi S. Naik v. Union of India and others - AIR 1994 SC 1558, a Division Bench of this Court held that a person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership WP(C) 29088/07 8 of that party. It was also held that even in the absence of a formal resignation, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. 12. In my view, the law laid down in the aforesaid judgment applies in full force to the facts of this case also. In the judgment in W.A.2351/2005, a Division Bench of this Court upheld the judgment of the learned Judge that by accepting the nomination by members of the rival coalition, the appellant therein had voluntarily abandoned membership of his political party. Since the words 'voluntarily giving up membership of his political party' is not to be equated with ceasing to be a member of his party by resignation, from the conduct of the petitioner if an inference can be drawn that he has voluntarily given up his membership of his political party, he is liable to be disqualified. From the facts noticed by the 2nd respondent, it is evident that the petitioner had acted against the directions of his party leadership and that he was arraying himself with the rival coalition. These facts certainly justify the inference that the petitioner had voluntarily given up his membership in Indian WP(C) 29088/07 9 Union Muslim League, although he had not tendered his resignation. 13. Learned counsel submits that in view of the pendency of the appeal that the petitioner had filed before the State President of the party, until a decision is rendered by the State President, the petitioner could not be treated as having given up his membership in that party. It is stated that he was pursuing an intra party appellate remedy and that even in the appeal memorandum his desire to continue as a humble worker of the party was expressed in clear terms. 14. This submission made by the counsel for the petitioner is sought to be contradicted by the learned standing counsel appearing for the 2nd respondent, mainly relying on the judgment of the Apex Court in Rajendra Singh Rana & Ors. v. Swami Prasad Maurya & Ors. - AIR 2007 SC 1305. In that case the Apex Court has held that the relevant date for deciding the question of disqualification is the date on which the member voluntarily gives up the membership or defies the whip. The fact that an application subsequently made for recognising split in the original political party was held of no relevance to decide the WP(C) 29088/07 10 issue of disqualification, which was to be decided with reference to the date of defection. It was also held that an interpretation of that nature would lead the disqualification to an indiscriminate point of time and to the whims of the decision making authority defeating the very object of enacting the law. 15. In view of the law laid down by the Apex Court in the above judgment, I hold that the pendency of Ext.P3 appeal stated to have been filed before the State President of the political party to which he belonged is of no consequence in so far as the Election Commission is concerned for deciding the question of disqualification of the petitioner. I do not find anything illegal in Ext.P4 warranting interference. The writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE mt/-