IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WA.No. 2324 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.19694/2009 Dated 09/10/2009 .................... APPELLANT(S): PETITIONER: -------------------- MS.SHINEY AUGUSTINE, ARUNCHERIYIL, MUNDANMODY P.O., VANNAPPURAM, MEMBER, VANNAPPURAM GRAMA PANCHAYAT, THODUPUZHA IDUKKI DISTRICT. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.SUMESH KUMAR N.C. SRI.K.M.ANEESH RESPONDENT(S): --------------- 1. KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM. 2. SRI.SUNNY PAULOSE, MEMBER, WARD NO.5, VANNAPURAM GRAMA PANCHAYAT KULAPPURAKKAL HOUSE, MUNDANMUDI, KALLIPPARA, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 BY ADV. SRI.RAJA VIJAYARAGHAVAN FOR R2 BY ADV. SRI.M.T.SURESHKUMAR FOR R2 BY ADV. SRI.R.RANJITH FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/8/2010 THE COURT ON 04/10/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.2324 of 2009 ----------------------------------------- Dated this the 4th day of October, 2010 JUDGMENT Ravindran. J. The petitioner in W.P(C)No.19694 of 2009 is the appellant in this writ appeal. The writ petition was filed challenging Ext.P3 order passed by the Kerala State Election Commission on 9.7.2009 disqualifying the appellant under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. By judgment delivered on 9.10.2009 the learned single Judge dismissed the writ petition. Hence this writ appeal. The brief facts of the case are as follows. 2. In the elections to the local bodies held in the year 2005, the appellant was elected as member of Vannapuram Grama Panchayat from Ward No.6 of that Panchayat, as a candidate sponsored by the Kerala Congress (J), a political party registered under section 29A of the Representation of the People Act, 1951. The second respondent herein was elected as the member representing Ward No.5 of Vannapuram Grama Panchayat as a candidate sponsored by the Kerala Congress (J). The Committee of the Vannapuram Grama Panchayat consisted of 16 members including the petitioner and the second respondent. Nine out of the said sixteen members including the W.A.No.2324 of 2009 :- 2 -: appellant and the second respondent were members of the Left Democratic Front (LDF), a coalition of political parties and seven were members of the United Democratic Front (UDF), yet another coalition. The members belonging to the Left Democratic Front had the majority in the committee of the Panchayat. They elected the appellant as the President and Sri.Jose Joseph, a candidate sponsored by the Communist Party of India (Marxist) which is also a constituent of the Left Democratic Front, as the Vice President. 3. While the appellant was in office as the President of Vannapuram Grama Panchayat, she subscribed her signature to a motion of no confidence moved by the opposition parties (UDF) against Sri.Jose Joseph, the Vice President of the Panchayat. The motion was tabled on 13.11.2008, it was carried and the Vice President was unseated. Two weeks later, the second respondent herein, the member representing Ward No.5 of Vannapuram Grama Panchayat filed O.P.No.158 of 2008 before the Kerala State Election Commission under section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for an order disqualifying the appellant. In that application, a copy of which is on record as Ext.P1, the second respondent contended that the appellant has voluntarily given up her membership of the Kerala Congress(J), political party, joined the UDF W.A.No.2324 of 2009 :- 3 -: and signed a no confidence motion against the Vice President along with members of the UDF, that thereupon a notice was issued to the appellant to attend the parliamentary party meeting of the Kerala Congress (J), that in the meeting of the parliamentary party of the Kerala Congress (J), the second respondent herein was elected as the whip, that he thereupon issued a whip to all the members including the appellant by registered post, that the whip was also affixed in the residence of the appellant in the presence of witnesses, but the appellant, knowing the contents and ignoring the directions of the parliamentary party, voluntarily gave up her membership of the Kerala Congress (J), supported the no confidence motion, voted in favour of the no confidence motion and ousted the Vice President belonging to the LDF. It was alleged that the appellant has thereby voluntarily given up her membership of the Kerala Congress (J) and joined hands with Congress and the UDF. 4. The appellant resisted the petition contending inter alia that she still continues to be a member of the political party, Kerala Congress (J) as well as the President of the Panchayat, that no parliamentary party leader was elected or whip issued as alleged, that no direction was received either from the coalition or from the political party of which the appellant is a member, that no direction issued by W.A.No.2324 of 2009 :- 4 -: any person was either received by the appellant directly or served on her by registered post or by affixture and that she has never given up her membership of the political party, Kerala Congress (J). Before the State Election Commission, the second respondent was examined as PW1 and five other witnesses (P.Ws. 2 to 6) were also examined. The second respondent also produced and marked Exts.P1 to P15 into evidence. The appellant did not enter the box or produce any documents in support of her contentions. However RW1 was examined on her side. The State Election Commission on an analysis of the evidence, oral and documentary and the pleadings and the materials on record, held that the second respondent, the petitioner before the State Election Commission, has failed to prove that he was elected as the whip by the parliamentary party. The Commission also held that the second respondent has not proved that the intimation said to have been issued by the second respondent was duly served on the appellant. The State Election Commission accordingly held that the appellant cannot be found fault with for violating the whip. The Commission thereafter proceeded to consider whether the appellant is liable to be disqualified for the reason that she has voluntarily given up her membership of the political party, Kerala Congress (J). Relying mainly on the averments in W.P(C)No.29517 of 2008 filed by the W.A.No.2324 of 2009 :- 5 -: appellant, a copy of which was produced and marked as Ext.P1 before the State Election Commission and Ext.P10 judgment delivered by this Court in that writ petition, the State Election Commission held that the appellant has voluntarily given up her membership of the political party, Kerala Congress (J) and joined the Congress, a constituent of the UDF. The State Election Commission accordingly allowed O.P.No.158 of 2008 and disqualified the appellant from continuing as a member of the Vannapuram Grama Panchayat and also from contesting the elections to the local bodies for a period of six years. Aggrieved thereby, the appellant filed W.P(C)No.19694 of 2009. By judgment delivered on 9.10.2009 the learned single Judge dismissed the writ petition. The appellant has aggrieved thereby preferred this writ appeal. 5. We heard Sri.Devan Ramachandran, learned counsel appearing for the appellant, Sri.Murali Purushothaman, learned standing counsel appearing for the State Election Commission and Sri.Raja Vijayaraghavan, learned counsel appearing for the second respondent. We have also gone through the pleadings and the materials on record. The State Election Commission has, by Ext.P3 order, disqualified the appellant on the short ground that she has voluntarily given up her membership of the political party Kerala W.A.No.2324 of 2009 :- 6 -: Congress (J) and joined the Congress, a constituent of the UDF. The case set out by the second respondent that the appellant acted in violation of the whip issued and served on her was found against by the State Election Commission. The relevant averments in O.P.No.158 of 2008 relating to the allegation that the appellant has voluntarily given up her membership of the political party Kerala Congress (J) are as follows:- 4. It is submitted that after electing the respondent as the President of the Panchayat she voluntary given up her membership from the political party and front and joined in glove with the UDF and Congress created so many problems to the party and front. 5. It is submitted that the respondent on 31-10-08 signed a no-confidence motion notice against the Vice-President along with UDF members and submitted before the concerned authorities. 6. Immediately knowing this the LDF and the Kerala Congress (J) convened its parliamentary party and notice to attend the Parliamentary party meeting was also issued to the respondent. The said notice is also affixed in her residence. 7. Both the LDF and Kerala Congress Parliamentary party convened its meeting and discussed the issue of the coming no-confidence W.A.No.2324 of 2009 :- 7 -: motion and on 10.11.2008 LDF elected A.J.Jose as its Whip and Kerala Congress elected the petitioner as the whip. The said facts was communicated to the Panchayat Secretary. 8. It is submitted that in Vannappuram Grama Panchayat there are 5 Kerala Congress members and the respondent is one among them. The LDF and Kerala Congress Parliamentary party decided to vote against the no-confidence motion and decided to issue whip to its members. 9. As per the decision of the Kerala Congress Parliamentary party the petitioner issued Whip to its members including the respondent through registered post. The said Whip also affixed in the residence of the respondent in presence of witnesses. Being the LDF Whip A.J. Jose also issued Whip to the respondent to vote against the no-confidence motion scheduled to be held on 13-11-2008. 10. The respondent refused to accept the said registered Whip. Knowing its contents on 13- 11-2008 the respondent ignoring the directions of the parliamentary party and the party voluntary given up her membership from the party and supported the no-confidence motion and voted in favour of the said motion and ousted the LDF Vice- President. 11. The acts and conducts of the respondent are against direction and interest of Kerala Congress and LDF. The respondent thereby W.A.No.2324 of 2009 :- 8 -: voluntarily given up the membership from Kerala Congress and joined the hands with Congress and UDF. The respondent is therefore not entitled to continue as a member of Vannappuram Grama Panchayat. More over the act of defection is amounts to further disqualification from contesting elections for a period of six years. 6. In Ext.P2 written statement, the appellant denied the said averments and averred as follows:- 2.b) Sec.3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, provides for disqualification on the ground of defection “if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting.” It is submitted that the Respondent never given up her membership of the party. She was elected as the member of the Panchayat as an official candidate of Kerala Congress (Joseph Group) in the election symbol, Cycle. Along with the Petitioner four other members who were official candidates of Kerala Congress (Joseph Group) were also elected as the member of the Panchayat. The said party has never elected W.A.No.2324 of 2009 :- 9 -: Parliamentary Party Leader or Whip. Moreover the LDF coalition also never elected any Parliamentary Party Leader or whip. The respondent was elected as the President of the Panchayat and she was considered as the Parliamentary Party Leader and chief whip of the Kerala Congress (J) or LDF. She still continues as the member of the Kerala Congress (J) as well as the President of the Panchayat. x x x 7. The averments in Para no. 4 & 5 of the petition are absolutely false and hence denied. She never had voluntarily given up her membership from the political party or front as alleged. She never joined and glove with UDF and Congress and created problems as alleged. Whatever action she had taken was under the directions of the Political Party she belongs. She also denied the allegation that a whip had been duly issued and served on her. 7. As noticed earlier, the State Election Commission held that the appellant has voluntarily given up her membership of the political party Kerala Congress (J) mainly relying on the averments in the writ petition filed by the appellant in this Court and the judgment therein, copies of which were produced and marked as Exts.P1 and P10 respectively before the State Election Commission. The appellant filed W.A.No.2324 of 2009 :- 10 -: W.P(C)No.29517 of 2008 in this Court on 6-10-2008 even before she subscribed her signature to the no confidence motion stating that she had resigned from the Kerala Congress (J) and joined the Congress, that, as a result thereof, respondents 6 to 9 therein (the 6th respondent being the 2nd respondent herein) attempted to attack the appellant on different occasions, that she thereupon requested for police protection, that due to political influence, the Police have not afforded her any protection and that in such circumstances as she apprehends danger to her life, police protection may be afforded to her. In that writ petition the second respondent herein, who was the 6th respondent, entered appearance and filed a counter affidavit denying the averments in the writ petition and contending that they have not obstructed the appellant from functioning as the President of the Panchayat. They also denied the allegation that they had threatened her. The said writ petition was disposed of by judgment delivered on 16-10-2008 by a Division Bench of this Court. Taking note of the fact that the appellant had shifted her political loyalties and as a result thereof, there may be some resentment against her by members of the parties who had supported her during the elections, this Court held that while such persons may have a right to hold demonstrations or public meetings against the appellant, they cannot W.A.No.2324 of 2009 :- 11 -: physically obstruct the appellant or harm her. This Court accordingly directed that if there is any violence against the person of the appellant, she may inform the Sub Inspector of Police, Kaliyar Police Station, who shall look into the complaint and if found genuine extend necessary protection. It was relying on the averments in the writ petition and the police protection order passed by this Court in that writ petition, the State Election Commission held in Ex.P1 judgment that the appellant had voluntarily given up her membership of the political party Kerala Congress (J). 8. In Ext.P1 complaint filed before the State Election Commission on 27.11.2008 there is no reference at all to the averments made by the appellant in W.P(C )No.29517 of 2008 which was disposed of on 16.10.2008 after notice to the second respondent herein and others. The second respondent or the other members of the political party Kerala Congress (J) could have, relying on the averments in W.P(C) No.29517 of 2008, moved the State Election Commission for a declaration that the appellant has voluntarily given up her membership of the political party Kerala Congress (J). They did not however, do so. Instead, after the said writ petition was disposed of and the motion of no confidence against the Vice President was carried, they filed a complaint wherein there is no reference at all to the statement W.A.No.2324 of 2009 :- 12 -: made by the petitioner in W.P(C)No.29517 of 2008 to the effect that she has resigned from the Kerala Congress (J) and joined the Congress party. Nearly one month had passed between the date on which W.P (C)No.29517 of 2008 was disposed of and O.P.No.158 of 2008 was filed before the State Election Commission. The second respondent did not, for reasons best known to him, rely on the averments made by the appellant in W.P(C)No.29517 of 2008 to contend that the appellant has voluntarily given up her membership of the political party. Instead, he filed O.P.No.158 of 2008 alleging that by signing the no confidence motion and voting in favour of the no confidence motion in violation of the whip, the appellant has acted against the interests of the Kerala Congress (J) and thereby voluntarily given up her membership of the Kerala Congress (J). The allegation in Ext.P1 is that by voting in favour of the no confidence motion the appellant has acted against the interest of the political party which had set her up as a candidate in the elections and had voluntarily given up her membership of the Kerala Congress (J) party. In this context it is relevant to note that the second respondent had failed to prove before the State Election Commission that any whip was in fact issued by the Kerala Congress (J) calling upon the appellant to vote against the no confidence motion, that contrary to the whip she voted in favour of the no confidence W.A.No.2324 of 2009 :- 13 -: motion and that she has thereby voluntarily given up her membership of the political party. We have in Chinnamma Varghese v. State Election Commission, 2010 (3) KLT 426 after a survey of the case law on the point and an analysis of the provisions contained in the Kerala Local Authorities (Prohibition of Defection) Act, 1999, held as follows:- “19. Incurring of the disqualification under any one of the above mentioned contingencies depends upon the existence of a definite set of facts, which facts are required to be specifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act. 20. The law of pleadings has been very definite in this country from atleast 1930 onwards. In the judgment reported in Siddik Mohamed Shah v. Mt.Saran, AIR 1930 Privy Council 57 (1), the Privy Council held that no amount of evidence can be looked into upon a plea which was never put forward. The said principle had been approved by the Supreme Court in Kashi Nath v. Jaganath, (2003) 8 SCC 740 at paragraph 17 as follows:- “As noted by the Privy Council in Siddik Mohd. Shah v. Saran, (AIR 1930 PC 57 (1) and Trojan and Co. v. Rm. N.N.Nagappa Chetiar (AIR 1953 SC 235) when the evidence is not in line with the pleadings and is at variance with it and W.A.No.2324 of 2009 :- 14 -: as in this case, in virtual self- contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon.” 21. The insistence upon a specific plea has a rationale behind it. It is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted against them and what are the rights or obligations sought to be enforced against them. Therefore, the order of the first respondent, in so far as it chose to permit evidence against the appellant herein to the effect that the appellant withdrew from the coalition of LDF, is without any pleading and therefore, in the light of the principle of law extracted earlier could not have been looked into. To that extent we are of the opinion that the first respondent as well as the learned Judge fell in error in coming to the conclusion that such a course of action is permissible in view of the decision of the Supreme Court reported in Sardul Singh v. Pritam Singh (1999) 3 SCC 522. In the said judgment the Supreme Court at paragraph 12 observed as follows:- “It is well settled that notwithstanding the absence of pleadings before a court or authority, still if an issue 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 W.A.No.2324 of 2009 :- 15 -: witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later.” In our view the above observation is to be understood in its context. At any rate the law regarding the election disputes in this country always insisted upon a more stringent rules of pleading and proof. 22. Taking the case on hand, the activity of the appellant which was found to tantamount to withdrawal from the coalition is stated to be signing of the notice in the no confidence motion by the appellant herein. Even in the matter of an elected representative belonging to a political party such a signing of the notice of no confidence motion per se is not declared under the above mentioned Act to be an activity attracting disqualification on the ground of defection. It is only the specific overt act of voting or abstaining from voting contrary to any written directions issued by the political party on a no confidence motion that tantamounts to defection. If that is the legal position with regard to a member of the Panchayat belonging to a political party, a member of a coalition, in our opinion, cannot be logically said to have committed an act of withdrawal from the coalition which has the serious consequence of rendering such a member disqualified from being W.A.No.2324 of 2009 :- 16 -: a member of the Panchayat, on the mere ground that he or she has signed the notice of no confidence motion.” 9. Under the provisions of section 3 of the Kerala Local Authorities (Prohibition of Defection) Act 1999, a member belonging to a political party can be disqualified only if he/she votes or abstains from voting 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 or voluntarily gives up his or her membership of the party. Voting or abstaining from voting should, in respect of a meeting of a Panchayat, be in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee or in a voting on a no confidence motion against any one of them except a member of a Standing Committee. Under Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 a member belonging to a political party cannot be disqualified for violating the whip issued by a coalition. Only an independent member belonging to a coalition can be disqualified for violating the whip issued by the coalition. In the instant case, the Vice President was not a member of the political party Kerala Congress (J). He was a member of the Communist Party of W.A.No.2324 of 2009 :- 17 -: India (Marxist). In the absence of a whip, the appellant was entitled to vote either against the no confidence motion or in favour of the no confidence motion, according to her conscience. As noticed by us in Chinnamma Varghese v. State Election Commission, (supra) it is only the specific overt act of voting or abstaining from voting contrary to any written direction issued by the political party on a no confidence motion that tantamounts to defection. A member belonging to a political party is not liable to be disqualified merely because he or she has signed the notice of no confidence motion. The case set out by the second respondent in Ext.P1 complaint filed by the second respondent before the State Election Commission would disclose that the case projected by the second respondent was that the appellant had violated the whip issued by a political party by voting in favour of the no confidence motion. The second respondent had no case that the appellant has, by her conduct over a period of time, abandoned her membership of the political party. As noticed earlier, though the appellant had filed W.P(C)No.29517 of 2008 wherein she had stated that she has resigned from the Kerala Congress (J) and joined the Congress party, the second respondent did not, for reasons best known to him,