IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 3951 of 2008(U) --------------------------------------- PETITIONER: --------------------- NAZEERKHAN S., VICE PRESIDENT, THRIKADAVOOR GRAMA PANCHAYAT, KOLLAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: ------------------------- 1. THE KERALA STATE ELECTION COMMISSION, OFFICE OF THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. B. AJITH KUMAR, MEMBER, TRIKADAVOOR GRAMA PANCHAYATH, KOLLAM DISTRICT. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.S.SANAL KUMAR FOR R2 SMT.BHAVANA VELAYUDHAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON 15/07/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.3951/2008 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P3: COPY OF THE DEPOSITION OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE DEPOSITION OF THE PETITIONER. EXT.P5: COPY OF THE WHIP DTD. 16/08/2006. EXT.P6: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DTD. 29/01/2008. EXT.P7: COPY OF THE MINUTES OF THE MEETING HELD ON 02/08/2006. RESPONDENT'S EXHIBIT: EXT.R2(A): COPY OF THE MINUTES OF THE PANCHAYATH DTD. 16/08/2006. /TRUE COPY/ P.S. TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = W.P.(C) No. 3951 OF 2008 (U) = = = = = = = = = = = = = = Dated this the 15th day of July 2008 J U D G M E N T Ext. P6 order passed by the Kerala State Election Commission, is sought to be quashed in this writ petition. Petitioner is also seeking a declaration that he has not voluntarily given up his membership of the Congress party so as to disqualify him. 2. The facts that led to Ext. P6 order are that the petitioner herein was a candidate sponsored by the Congress party and was elected as a member of the Thrikadavoor Grama Panchayat. There were 21 members in the Panchayat, out of which, nine belonged to Congress (I), eleven belonged to LDF and one was an independent. Ext. X1, the political affiliation register of the Panchayat discloses these details. 3. Election of the Vice President was held on 17.7.2006 and there were two candidates. One was Mr. Kochukuttan Pillai, a Congress (I) candidate and the other was the petitioner himself, also W.P.(C) No. 3951 OF 2008 =: 2 := a member belonging to that party. In the election Mr. Kochukuttan Pillai secured 9 votes as against 12 votes secured by the petitioner. Of the 9 votes cast in favour of Mr. Kochukuttan Pillai 8 were cast by the members belonging to Congress, including himself and of the 12 votes secured by the petitioner, 10 votes were from members belonging to LDF, one from an independent candidate and the remaining one was of himself. 4. Thereupon the 2nd respondent herein filed Ext. P1 petition before the 1st respondent invoking its powers under the Kerala Local Authorities (Prohibition of Defection) Act, 1999. In Ext. P1, it is alleged that in the election to the post of Vice President, disobeying the whip issued by the District President of the Congress (I) party, the petitioner contested the election against Mr. Kochukuttan Pillai, member from Ward No. 4 who was sponsored by the majority of the members belonging to Congress (I). It was alleged that his candidature was seconded by Smt. Sreedevi Mohan belonging to CPI (M) and he contested the election and defeated the official candidate of the Congress (I) securing votes from the members of the LDF. On this basis, it was alleged that in the election of Vice President, the petitioner contested against the official candidate of the W.P.(C) No. 3951 OF 2008 =: 3 := Congress party in violation of the whip and rendered himself liable to be disqualified under the Kerala Local Authorities (Prohibition of Defection Act), 1999 (hereinafter referred to as 'Act” for short). 5. Ext. P1 petition was registered as O.P. No. 43/06 and notice was issued to the petitioner. He filed Ext. P2 objection and disputed the validity of the whip issued. He contended that he contested the election as the official candidate of Congress (I) as per the majority decision of the Congress (I) members and that he was elected as Vice President of the Grama Panchayat on that basis. 6. The 2nd respondent tendered oral evidence which is produced as Ext. P3 and petitioner's deposition is Ext. P4. The 2nd respondent produced Exts. P1 to P5 documents and the petitioner produced Ext. R1 letter from the Local Self Government Department. Exts.X1 to X6 were also produced. On the pleadings the 1st respondent framed issues as to whether the petitioner has violated the whip issued by a competent person to vote for the official candidate and whether he can be disqualified on the ground of having voluntarily given up membership of the party to which he belonged. 7. In so far as the allegation that the petitioner had W.P.(C) No. 3951 OF 2008 =: 4 := disobeyed the whip issued by his party leadership is concerned, the 1st respondent concluded that he cannot be faulted for having violated a duly issued whip as the whip was issued by an incompetent person. In so far as issue No. 2 as to whether the petitioner had rendered himself liable to be disqualified on the ground of having voluntarily given up membership of his party, the 1st respondent concluded as follows: “The next question to be decided here is whether the respondent has voluntarily given up the membership of the party. All the documents and oral evidence prove beyond any shadow of doubt that the respondent contested for the post of Vice President against the wishes of his party on whose ticket he was elected to the Grama Panchayat. Ext. X3, the minutes of the election conducted to the post of Vice President on 17.7.06, shows that the name of the respondent was proposed by Sri. Leon Bernard, the independent member and supported by Ms. Sreedevi Mohan, the member belonging to LDF {CPI (M)}. The name of PW2 was proposed and seconded by the members belonging to Congress (I). At the election, Sri. Kochukuttan Pillai obtained nine votes as against the 12 votes bagged by the respondent. Of the nine votes obtained by Sri. Kochukuttan Pillai, eight votes were cast by members belonging to Congress (I). Of the twelve votes received by Sri. S. Nazeerkhan, ten votes were from the LDF, one from the independent and the remaining one his own vote. This clearly proves that he had contested the elections with the support of the opposite front and he go9t elected with the support of LDF. All of his eight colleagues elected on Congress (I) ticket votes against him. This clearly proves that he had acted against the interest of the party and colluded himself with the W.P.(C) No. 3951 OF 2008 =: 5 := opposite front. This is exactly what is called voluntarily giving up or abandoning the membership of the political party. Hence he is liable to be disqualified under the Act. Hence I hold that Sri. S. Nazeerkhan, member representing Ward No. 8 of Thrikkadavoor Grama Panchayat in Kollam District is disqualified under the Act with effect from the date of this order. The original petition is allowed. No costs.” It is against the said finding of the 1st respondent in Ext. P6 order, the writ petition has been filed. 8. Counsel for the petitioner contended that grounds under Section 3(1)(a) of the Act, for disqualification based on voluntarily giving up membership of political party and violation of whip are independent and that the only ground pleaded in Ext. P1 was that the petitioner had disobeyed the whip and thus rendered himself liable to be disqualified. Proceeding further it was also contended that the petitioner had never ceased to be a member of the Congress (I) party and that this was evident from Exts. P5 and P7, the two whips issued by his political party subsequent to his election as Vice President. According to the counsel, there was no pleading to the effect that he had voluntarily given up his membership of his political party and that there was no evidence let in by either himself or the 2nd respondent and therefore the finding of disqualification contained in Ext. P6 is on an issue which was not W.P.(C) No. 3951 OF 2008 =: 6 := pleaded by the 2nd respondent. 9. As far as the issues framed are concerned, it was contended that though in terms of Section 5 of the Act, the 1st respondent is to dispose of Ext. P1 in accordance with the procedure as applicable while trying a suit under the Civil Procedure Code, 1908, issues were not framed with notice to the parties. It was argued that in terms of the provisions contained in the C.P.C., issues are to be framed on the pleadings of parties and therefore framing of issue No. 2 itself is erroneous. Counsel also contended that political division of the members of the Panchayat does not have any statutory recognition and that in the absence of a valid whip issued, the petitioner was entitled to contest in the election even if the rival candidate is belonging to his own political party and therefore the conclusion that he had voluntarily given up membership in his political party is perverse. 10. According to the learned counsel for the 2nd respondent, the question as to whether the petitioner had suffered disqualification on the basis of having voluntarily given up his membership in the political party is to be decided based on his conduct and the attendant circumstances. According to him, a W.P.(C) No. 3951 OF 2008 =: 7 := reading of paragraphs 3 and 4 of Ext. P1 shows that necessary facts have been pleaded and that the petitioner had notice of those factual matters. It was contended that the fact that the petitioner was proposed by an independent member and seconded by an LDF member, that he contested the election against the officially sponsored Congress candidate, that he won the election only with votes of the LDF members and an independent member of the Panchayat are not in dispute. It was stated that on those undisputed facts itself, the only possible conclusion is that the petitioner had voluntarily given up his membership in the political party. 11. Counsel also contended that the case of the petitioner in Ext. P2 objection filed by him was that he was the official candidate of the Congress party and that he had not produced any evidence in support of this contention. It was also submitted that the strict law of pleading is inapplicable in a proceedings of this nature and that if a person had notice of the facts which disclosed a ground of disqualification, then that will suffice. Learned counsel also relied on the Apex Court judgments in the case of Ravi S. Naik v. Union of India {AIR 1994 SC 1558} and Dr. Mahachandra Prasad Singh v. W.P.(C) No. 3951 OF 2008 =: 8 := Chairman, Bihar Legislative Council {(2004) 8 SCC 747}. 12. On behalf of the 1st respondent, the learned Standing Counsel argued that once issues are framed, the parties being conscious of such issues, cannot subsequently be permitted to raise an objection that specific pleading regarding the issue framed was lacking. He was relying on the Apex Court judgment reported in Sardul Singh v. Pritam Singh {(1999) 3 SCC 522} in support of this proposition. 13. The question that arise for consideration is whether the 1st respondent was justified in framing the issue whether the petitioner had rendered himself liable to be disqualified on the ground of having voluntarily given up membership of the party to which he belonged and entering an adverse finding on that issue against the petitioner. 14. Section 3(1)(a) of the Act to the extent it is relevant, provides that if a member of Panchayat belonging to any political party voluntarily gives up his membership of such political party, or contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorized by it in this behalf in the manner prescribed, votes or abstains from voting in an W.P.(C) No. 3951 OF 2008 =: 9 := election to the post of Vice President, he shall be disqualified from being a member. In terms of Section 5, every petition under Section 4(1) shall be disposed of by the 1st respondent in accordance with the procedure applicable while trying a suit under the C.P.C. It is in pursuance to such conferment of power that Ext. P1 petition was filed before the 1st respondent. 15. So far as framing of issues are concerned, in terms of the provisions contained in the CPC, issues are to be framed on questions which are in dispute between the parties. In this case, the 2nd issue framed is whether the petitioner is liable to be disqualified on the ground of voluntarily giving up membership of his party. It is on the basis of the issue so framed that the parties went to trial. The question is whether there is any substance in the contention of the petitioner that the framing of the issue was without any specific pleadings and therefore is erroneous. This very question was considered by the Apex Court in Sardul Singh v. Pritam Singh {(1999) 3 SCC 522} in the context of a proceedings before the Bar Council of India, initiated against an Advocate, where it was held: “It is well settled that notwithstanding the absence of pleadings before a court or authority, still if an issue W.P.(C) No. 3951 OF 2008 =: 10 := is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an opportunity to produce evidence or cross-examine witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later.” In this case although the petitioner raised a vague plea, that issue was not raised before trial and that the parties did not have any notice of the issues framed, in the absence of any proof to that effect I am not in a position to accept this contention. On the other hand, in view of the law laid down by the Apex Court in the aforesaid judgment, I do not find any substance in the contention that the issue regarding disqualification on the ground of voluntarily giving up membership of the party ought not have been framed. 16. Having held so, the further question that is required to be examined is whether the 1st respondent was justified in its conclusion on issue No. 2 as contained in paragraph 6 of Ext. P6 extracted above. Counsel contended that due to absence of pleadings, the petitioner did not have any notice that he was liable to be disqualified on the ground that he had voluntarily given up his membership of the political party. The correctness of this contention has to be appreciated in the light of the pleadings that W.P.(C) No. 3951 OF 2008 =: 11 := were available before the 1st respondent and in the light of the law that is applicable to a proceedings in the nature of the one under the Act. 17. A reading of the averments in Ext. P1 shows that in the Vice Presidential election held on 17.7.2006 there were two candidates, one was the petitioner and the other was Sri.Kochukuttan Pillai and both belonged to the Congress party. It is also undisputed that the petitioner's candidature was proposed by Sri.Leon Bernard, an independent member and seconded by Smt.Sreedevi Mohan of CPI(M), and that it was on that basis the petitioner contested the election. Ext. X3, the minutes of the election shows that Sri. Kochukuttan Pillai secured 9 votes, out of which 8 were cast by members of Congress. It is also evident that the petitioner secured 12 votes of which 10 were from LDF Members, one from an independent member and the remaining one is his own vote. 18. Thus, the fact that he contested the election as Vice President with the support of the LDF against a Congress candidate and won the election with the votes of LDF members and an independent member is not in dispute. However, this argument W.P.(C) No. 3951 OF 2008 =: 12 := against him is attempted to be resisted by the petitioner on the basis that there was no valid whip restraining him from contesting the election. According to counsel, in the absence of a whip, any member is entitled to contest against any other member, be it from his own political party. Counsel further contends that political affiliation of the members is irrelevant in so far as Panchayats are concerned. I do not find any substance in this contention. If it were so, the Panchayat would not have maintained political affiliation register (Ext.X1) and obtained declarations (Ext.X2) from the members. 19. The question is whether on the aforesaid undisputed facts, which were pleaded in Ext. P1 petition, the 1st respondent was justified in disqualifying the petitioner on the finding that by his conduct he had voluntarily given up membership of his political party. The learned counsel for the 2nd respondent relied on the judgment of the Apex Court in Ravi S. Naik v. Union of India {AIR 1994 SC 1558} in which a member of the Goa Legislative Assembly was held to have voluntarily given up membership of his party. A reading of paragraph 26 of the judgment shows that the conduct of the appellant therein of having met the Governor in the company W.P.(C) No. 3951 OF 2008 =: 13 := of MLAs. belonging to Congress was not in dispute and the only dispute was whether from the said conduct of the appellants an inference of having voluntarily given up their membership in the MGP could be drawn. The contention that the provisions of the Act proceed on the premise that political propriety and morality demand that after the election, if a person changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate, was accepted by the Apex Court and the finding that by his conduct, the Member had voluntarily given up his membership of his political party was upheld. 20. The learned counsel for the 2nd respondent also relied on Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council {(2004) 8 SCC 747}, wherein at para 11, taking note of the fact that the Chairman of the Legislative Council had held that the petitioner therein had been elected to the Legislative Council on the ticket of Indian National Congress, but he contested the parliamentary election as an independent candidate, the conclusion that he had given up his membership in the Indian National W.P.(C) No. 3951 OF 2008 =: 14 := Congress was upheld by the Apex Court. Proceeding further it has been held: “ 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.” Thereafter, it was held that the purpose of the rule was only that the necessary facts on account of which a member becomes disqualified for being a member of the House may be brought to the notice of the Chairman, that there is no lis between the person moving the petition and the member of the House who is alleged to have incurred the disqualification and that it is not an adversorial kind of litigation. Proceeding further, it was held that even if the petition is withdrawn it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. 21. From a reading of the law laid down by the Apex Court in the above two judgments, it is clear that what is required is that the facts which attract disqualification of a member should be disclosed in the petition and the person against whom such allegations are W.P.(C) No. 3951 OF 2008 =: 15 := made should have notice of such facts. From the conduct of the member if it is possible to draw an inference that he had voluntarily given up his membership in his political party, the authority is justified in passing an order disqualifying him. 22. In the judgment in Shajahan v. Chathannoor Grama Panchayat {2000 (2) KLJ 451}, this Court held that the expression “voluntarily giving up membership” has a wider meaning than resignation. It was held that a person may voluntarily give up his membership of a political party even though he would not have tendered his resignation and 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. Following this judgment, on comparable facts, a Division Bench of this Court in its judgment in W.A. No. 2351/05 has held as follows: “However, the undisputed fact remains that the appellant's candidature was proposed by a member of the rival coalition, namely, LDF and was also seconded by a member of the rival coalition, namely, LDF. That would mean that the appellant himself could not muster support from his own party members to propose him and second him as a candidate of their party. On the other hand, he readily accepted the nomination by proposal and seconding by the members of the rival coalition. We are of opinion that the same W.P.(C) No. 3951 OF 2008 =: 16 := would certainly amount to voluntary abandonment of the membership of his political party, in so far as he could have very well refused the support offered by the rival coalition members. After having accepted their support and contested against a candidate who was a member of his political party, he cannot now turn round and claim that he has not voluntarily abandoned the membership of his own political party.” 23. Based on the evidence adduced the 1st respondent has found that the official candidate of the congress party was Sri.Kochukuttan Pillai. The undisputed facts show that the petitioner's candidature was proposed by an independent member and was seconded by a member of the rival LDF. He won the election entirely on the votes of the LDF members and an independent member. He did not secure even a single vote from the members of Congress to which he belonged. It is inspite of all these that he is now contending that his conduct did not amount to voluntarily giving up of membership of his political party and that he did not have notice of the case against him. His conduct has been pleaded with sufficient material particulars in Ext.P1 and he had notice of the facts based on which finding has been entered into. The 1st respondent has framed issues and the petitioner had opportunity to lead evidence also. In the adjudication, on the materials available, it has been rightly found that writ petitioner W.P.(C) No. 3951 OF 2008 =: 17 := had voluntarily given up his membership. In my view, from the facts noticed above, the inference drawn from petitioner's conduct that he had voluntarily given up membership of his political party is unassailable. 24. Counsel contended that even his party did not treat him as having given up his membership and relies on Exts. P5 and P7 whips issued on