IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 19694 of 2009(F) ---------------------------------------- PETITIONER(S): ------------------------- MS.SHINEY AUGUSTINE, ARUNCHERIYIL, MUNDANMODY P.O., VANNAPPURAM, MEMBER, VANNAPPURAM GRAMA PANCHAYATH, THODUPUZHA, IDUKKI DISTRICT. BY ADVS. MR.DEVAN RAMACHANDRAN, MR.V.K.PEERMOHAMED KHAN, MR.SUMESH KUMAR N.C., MR.K.M.ANEESH. RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. SRI.SUNNY PAULOSE, MEMBER, WARD.NO.5, VANNAPURAM GRAMA PANCHAYATH, KULAPPURAKKAL HOUSE, MUNDANMUDI, KALLIPPARA, THODUPUZHA, IDUKKI DISTRICT. R1 BY ADV.MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION R2 BY ADVS. MR.V.V.RAJA, MR.R.RANJITH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON 9/10/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.19694/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SAID PETITION FILED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT DTD. 27/11/2008. P2: COPY OF THE WRITTEN STATEMENT DTD.12/02/2009. P3: COPY OF THE ORDER DTD. 9/07/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.19694 of 2009-F = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of October, 2009. JUDGMENT “CR” 1.Vannappuram Grama Panchayat has 16 members. Going by the pleadings, five of them, including the writ petitioner and the second respondent, belonged to Kerala Congress(J). The writ petitioner was elected President of that panchayat. A.J.Jose belonging to CPI(M) was elected Vice President. A motion of no confidence signed by different members, including the writ petitioner, was carried against A.J.Jose on 13.11.2008. 2.The second respondent filed Ext.P1 petition before the Kerala State Election Commission, hereinafter, “Commission”, for short, seeking a declaration that the writ petitioner has ceased to be a member of the panchayat. She was WPC19694/09 -: 2 :- attributed of having voted against a direction, duly issued to her to vote against the aforesaid no confidence motion. She was also charged of having voluntarily given up the membership of the political party to which she belonged. After hearing the evidence of witnesses, including the second respondent herein as P.W.1 and two other members of the Kerala Congress(J) as P.W.2 and R.W.1 and considering the documentary evidence, the Commission issued Ext.P3 order, overruling the writ petitioner's objections contained in Ext.P2 and holding that it is proved beyond any shadow of doubt that she was elected to the panchayat as a member of the Kerala Congress(J) under the banner of LDF and that she has deserted Kerala Congress(J) and she has voluntarily given up her membership of that political party, though she is not liable to be disqualified for violating any duly issued direction. This is under challenge. 3.The contention of the writ petitioner, as WPC19694/09 -: 3 :- projected by her learned counsel, is that, it having been found that no whip was duly issued to vote against the no confidence motion moved against A.J.Jose, the further finding in Ext.P3 that the writ petitioner has voluntarily given up membership of Kerala Congress(J) is without the authority of law and is based merely on surmises and conjectures and wholly unreasonable. It is further contended and argued that on the basis of the pleadings in Ext.P1, the cause of action projected is solely on the basis of the action in relation to the voting in the meeting where the no confidence motion against A.J.Jose was considered and any other act, if at all, that could be attributed against her, as found by the Commission, was clearly beyond the prescribed period of limitation. 4.Per contra, the learned counsel for the second respondent relied on the counter affidavit and argued that the materials on record abundantly show that the writ petitioner had voluntarily WPC19694/09 -: 4 :- given up the membership of the political party to which she belonged. It is argued that by signing the no confidence motion against A.J.Jose and by voting in support of the said no confidence motion against the interest of the coalition LDF, of which the political party Kerala Congress(J) was part, the writ petitioner had clearly demonstrated her segregation from Kerala Congress (J). He further argued that the act of the writ petitioner of having filed a writ petition before this Court and of having obtained judgment on the assertion that she has quit Kerala Congress(J) abundantly show that it is more than admitted that she no longer continues her affinity to Kerala Congress(J). The writ petition and the judgment which were Exts.P1 and P10 before the Commission were relied on. 5.The learned counsel for the Commission made submissions on the legal provisions. 6.Ext.P1 was filed before the Commission on WPC19694/09 -: 5 :- 27.11.2008. The no confidence motion against A.J.Jose was considered in the meeting of the panchayat on 13.11.2008. The period of limitation prescribed under Rule 4A(2) of the Kerala Local Authorities(Disqualification of Defected Members) Rules, 2000 is fifteen days from the date on which the cause of action arises. The Commission also has the power to condone delay in terms of the proviso to that rule. 7.In Ext.P1, the second respondent has contended, among other things, that the writ petitioner signed the no confidence motion against A.J.Jose and submitted it before the concerned authorities and that she also voted in support of the no confidence motion on 13.11.2008, resulting it being carried against A.J.Jose. Apart from contending that she had thereby violated the direction issued in relation to the voting, it is specifically pleaded in paragraph 11 of Ext.P1 that the acts and conduct of the writ petitioner are against the direction and interest of her WPC19694/09 -: 6 :- political party and LDF and that she has thereby voluntarily given up her membership of the political party and has joined hands with the Congress and UDF. With such plea on record, the vice attributed to the petitioner relates to her conduct of signing the proposed no confidence motion and voting in support thereof on 13.11.2008. This, obviously, means that the bundle of allegations which are the statements of facts on the basis of which the writ petitioner is criticised of having voluntarily given up her membership of the political party to which she belonged, relate to the aforesaid chain of events attributed to her incriminating conduct. The participation and voting in the meeting on 13.11.2008 is part of that chain and is within the period of limitation. 8.The Commission specifically found under Issue No.2(a) that the second respondent, who filed the petition before the Commission, failed to prove that any person was elected as the Whip of the WPC19694/09 -: 7 :- parliamentary party in any meeting of the party, as pleaded. It was further held that the second respondent did not prove that he was duly elected the Whip of the Kerala Congress (J) parliamentary party. Therefore, the Commission held that the second respondent herein was not competent to issue any direction and that the writ petitioner is not liable to be disqualified on the ground that she had violated any duly issued direction. 9.Under Issue No.2(b) in Ext.P3, the Commission dealt with the question whether the writ petitioner is liable to be disqualified on ground of having voluntarily given up the membership of the party to which she belonged. 10.Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 provides, inter alia, that if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, he shall be disqualified for being a member of WPC19694/09 -: 8 :- that local authority. Section 4(1) of that Act provides that if any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of that Act, a member of that local authority or the political party concerned or a person authorised by it in that behalf may file a petition before the Commission for decision. Sub- section 2 of Section 4 enjoins that the Commission shall, after making such enquiry as it deems necessary, decide whether such member has become subject to such disqualification or not and its decision shall be final. 11.After having held that the writ petitioner is not guilty of having violated any whip as alleged in Ext.P1 petition, the Commission went on to hold that though the writ petitioner had denied that Kerala Congress(J) was part of LDF coalition, the documentary evidence in the form of Ext.X1 and the statement of the writ petitioner in paragraph 2(b) of her written WPC19694/09 -: 9 :- statement (Ext.P2) and elsewhere would show that she virtually stands to admit that Kerala Congress(J) was part of LDF and that in having joined in the initiation to move the no confidence motion against A.J.Jose belonging to CPI(M), another constituent of LDF, and having voted in support of that no confidence motion, the writ petitioner has demonstrated that she has voluntarily given up the membership of the political party to which she belonged. In so far as that finding is concerned, there are clear and specific averments in Ext.P1 petition that the acts attributed to the writ petitioner as contained in Ext.P1 result in the situation where she has demonstrated herself to have voluntarily given up the membership of the political party to which she belonged. 12.The pleadings in Ext.P1 petition relate fundamentally to the accusation that the writ petitioner had also, along with others, been instrumental in moving, voting and carrying the WPC19694/09 -: 10 :- no confidence motion against A.J.Jose. The fact that A.J.Jose comes in the canopy of LDF is not disputed by the writ petitioner. As noted by the Commission, the clear version in Ext.P2 written statement of the writ petitioner is that she was considered as the Parliamentary Party Leader and Chief Whip of the Kerala Congress(J) and LDF and therefore, such repeated statements in Ext.P2 written statement are sufficient to nail down the writ petitioner to the fact situation that she belonged to the political party which was, for all intents and purposes, part of LDF. With these pleadings and evidence, the Commission cannot be found fault with, for having concluded that the writ petitioner had voluntarily given up her membership in the political party to which she belonged, namely, Kerala Congress(J). Therefore, it cannot be held that the finding of the Commission in that regard is unavailable on the materials on record or is vitiated by any error of law in the matter of appreciation of evidence or otherwise, warranting interference under WPC19694/09 -: 11 :- Article 226 of the Constitution. The bundle of facts on the basis of which the said pleading and the attendant evidence rest, essentially shows that, in the proceedings before the Commission, there was material for the Commission to hold that the writ petitioner has become subject to, such disqualification as pleaded by the second respondent in Ext.P1 petition. 13.Exhibit P1 before the Commission is the copy of writ petition, WP(C).29517/2008 filed by the writ petitioner in this case. In that, she had contended that the petitioner had taken the decision to join the Congress Party and she had accordingly resigned from Kerala Congress and has joined the Congress. It is also pleaded by her that her life is under threat and accordingly, an order for police protection may be issued. As per the judgment dated 16.10.2008, which was Ext.P10 before the Commission, this Court recorded that though the petitioner was elected to the Panchayat as a candidate from Kerala Congress(J), WPC19694/09 -: 12 :- after some time, she parted company with that party and she continued in office with the support of the opposition parties. 14.It has been strenuously argued by the learned counsel for the writ petitioner that if WP(C). 29517/2008 and the judgment rendered thereon on 16.10.2008 constituted the cause of action for the petition filed before the Commission, the same is clearly barred in as much as Ext.P1 petition was filed before the Commission only on 27.11.2008 though the aforesaid judgment is dated 16.10.2008. A perusal of Ext.P1 petition would show that there is no pleading therein touching either WP(C).29517/2008 or the judgment rendered in that case. Obviously, therefore, Ext.P1 petition is not founded on allegations referable to that writ petition or the judgment passed thereon. 15.The question of limitation relates to institution of a matter for which the period of WPC19694/09 -: 13 :- limitation is prescribed. The point of time from which the period of limitation commences to run does not keep shifting with the manner in which the burden of proof in a case gets ultimately discharged, with the process of shifting of the onus at trial. The impact of what surfaces at trial, on the question of limitation, may arise when the evidence adduced tend to show that the pleaded case gets washed off and a totally different foundation, which by itself would have been already time barred, is sought to be resurrected for the purpose of sustaining the case. However, such a situation would not normally be appreciated or countenanced by the courts. This is for the simple but salutary reason that no amount of evidence, without supporting pleadings, would be looked into. 16.But, when evidence is tendered in support of a legitimate inference or findings that can be otherwise drawn on the basis of the materials on record, such evidentiary materials would not, by WPC19694/09 -: 14 :- themselves, form the foundation to raise a plea of limitation. I say this in the context of this case because, I have held above, that the impugned order stands even without looking into the writ petition and the judgment which were Exts.P1 and P10 before the Commission. The only impact that the pleadings in WP(C).29517/2008 and the judgment thereon has had on the decision making process of the Commission, is to supplement and support the conclusion which is otherwise available on record, namely, that the writ petitioner had voluntarily given up her membership of the political party to which she belonged. Such evidence is only supportive and corroborative of the other materials on record, on the basis of which the Commission had concluded against the writ petitioner. The pleadings and the judgment in WP(C).29517/2008 had only been used to demonstrate the conduct and intentions of the writ petitioner and to fortify the findings on the pleaded facts. Those materials abundantly corroborate the findings on WPC19694/09 -: 15 :- the basis of the other materials, which would even otherwise stand. Therefore, the mere fact that the Commission relied on pleadings and the judgment in WP(C).29517/2008 does not, in any manner, tilt the case in favour of the writ petitioner or result in any conclusion that Ext.P1 petition filed before the Commission was time barred. 17.For the aforesaid reasons, the writ petition fails. In the result, this writ petition is dismissed with costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/09X09