IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 28051 of 2010(F) -------------------------------------- PETITIONER: ------------------- B.MUHAMMEDKUNHI, MEMBER, WARD NO.14, MEENJA GRAMA PANCHAYATH, RESIDING AT 'ZAM ZAM MANZIL', BALIPAGULI, KOLIYOOR VILLAGE, KASARAGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN, SRI.M.V.BIPIN. RESPONDENTS: ------------------------ 1. K.ABDULLA, MEMBER, WARD NO.IV, MEENCHA GRAMA PANCHAYATH, KASARAGOD DISTRICT - 671 121. 2. THE SECRETARY, STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. R1 BY ADVS. SRI.S.SANTHOSH KUMAR, SMT.LISSY JOSE .P, R2 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN., THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010,ALONG WITH W.P.(C). NO. 28056 OF 2010,THE COURT ON 30/09/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.28051/2010-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMPLAINT FILED BY THE R.1. AGAINST THE PETITIONER AS O.P.76/2009. EXT.P.2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXT.P.3: COPY OF THE ARGUMENT NOTES SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE R.2. EXT.P.4: COPY OF THE ORDER DTD. 31/08/2010 IN O.P. NO. 76/2009. EXT.P.5: COPY OF THE DEPOSITION OF PW1. EXT.P.6: COPY OF THE DEPOSITION OF PW4. EXT.P.7: COPY OF THE PHOTOGRAPHS PRODUCED BEFORE THE COMMISSION WHICH WOULD SHOW PARTICIPATION OF THE PETITIONER IN THE SUCCESSIVE PROGRAMMES ORGANISED BY THE MUSLIM LEAGUE, SUBSEQUENT TO THE NO- CONFIDENCE MOTION. EXT.P.8: COPY OF THE NOTICE ISSUED B THE PW4 TO THE P.1. INVITING HIM TO ATTEND OFFICIAL MEETING OF I.U.M.L., HELD ON 02/08/2010. EXT.P.8.A: COPY OF THE NOTICE ISSUED BY PW4 INVITING THE P.1. TO ATTEND THE KASARAGOD DISTRICT MUSLIM LEAGUE COUNCIL MEETING HELD ON 10/07/2010. EXT.P.9: COPY OF THE EVIDENCE OF R2 3 IN O.P. 76/2009 & 77/2009. EXT.P.10: COPY OF THE EVIDENCE OF RW4 IN O.P. 76/2009 AND 77/2009. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE DECLARATION DTD. 05/10/2010 SUBMITTED BY THE PETITIONER. EXT.R1.B: COPY OF THE LETTER OF THE CHAIRMAN OF DISTRICT MUSLIM LEAGUE PARLIAMENTARY BOARD. EXT.R1.C: COPY OF THE WHIP DTD. 28/10/2005 ISSUED BY GENERAL SECRETARY OF MUSLIM LEAGUE, KASARGOD DISTRICT COMMITTEE. EXT.R1.D: COPY OF THE NOTICE OF NO CONFIDENCE MOTION DTD. 23/10/2009 AGAINST OF THE PRESIDENT OF MEENJA GRAMA PANCHAYATH. W.P.(C). NO.28051/2010-F: EXT.R1.E: COPY OF THE NOTICE OF NO CONFIDENCE MOTION DTD. 23/10/2009 AGAINST OF THE VICE PRESIDENT OF MEENJA GRAMA PANCHAYATH. EXT.R1.F: COPY OF THE LETTER DTD. 12/11/2009 OF THE PRESIDENT OF MUSLIM LEAGUE, KASARGOD DISTRICT COMMITTEE. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.28051 & 28056 of 2010-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2010. JUDGMENT In both these writ petitions, the petitioners are challenging the common order passed by the State Election Commission in O.P.Nos.76/2009 and 77/2009, produced as Ext.P4, whereby the petitioners have been disqualified from the membership of Meenja Grama Panchayat in terms of the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 2. The first respondent in the writ petitions is the petitioner before the State Election Commission. The petitioners and the first respondent were elected in the elections conducted in September, 2005 from different wards of Meencha Grama Panchayat. They contested as candidates of a political party, viz. Indian Union Muslim League which is a constituent of the United Democratic Front (UDF). The Indian Union Muslim League had three members, Indian National Congress two and Kerala Congress (M) one and all these parties formed the constituents of U.D.F. The L.D.F. had four members and B.J.P. had also four members. 3. The first respondent was elected as President of Meenja Grama wpc 28051 & 28056 of 2010 2 Panchayat by the support of the elected members of U.D.F. The Vice President elected was Ms. Sobha from Indian National Congress. The dispute leading to the present proceedings arose when a a no-confidence motion was moved against the first respondent which was discussed in the meeting of the Panchayat on 9.11.2009. Both the petitioners herein are signatories to the no-confidence motion along with the members of the B.J.P. and they have also voted in favour of the motion along with four members of the B.J.P. and two members belonging to CPI (M). The motion was thus adopted. Another motion was similarly moved against the Vice President which was also adopted. 4. The petitions seeking disqualification, were filed on two grounds, viz. violation of the whip issued by the first respondent and for voluntarily giving up the membership of the political party which elected them as members of the Panchayat. 5. After examining various contentions the State Election Commission allowed both the original petitions on the ground that the petitioners have voluntarily given up their membership in the Indian Union Muslim League in joining with the rival B.J.P. It was also noticed by the Commission therein that in the election to the post of President, the wpc 28051 & 28056 of 2010 3 petitioner in W.P.(C) No.28051/2010 contested and won against the candidate of the Indian National Congress with the support of the petitioner in W.P.(C) No.28056/2010 and members of the B.J.P. 6. The petitioners, in their written statements contended mainly that there was no direction from the party not to vote against the no confidence motion and they have voted based on the discussion of the no confidence motion against the first respondent and they are still loyal workers of the Muslim League. 7. The oral evidence consists of the evidence of P.Ws.1 to 4 for the first respondent and Rws.1 to 4 for the petitioners. That the petitioners have been elected as members of the Indian Union Muslim League, is not disputed. From the declarations filed by all the 14 members of the Panchayat, this fact has been further evidenced. It shows that the petitioners herein and the first respondent are official members of the Muslim League in the U.D.F. which has got a total number of six members including two from Indian National Congress and one from Kerala Congress (M). The B.J.P. as well as the L.D.F. have four members and of the four members of the LDF, two members each belong to CPI (M) and CPI. 8. Ext.X2 is the attested copy of the minutes of the meeting of the wpc 28051 & 28056 of 2010 4 Panchayat held on 9.11.2009 to discuss the no confidence motion moved against the President. It was passed with eight votes against four. Ext.X2 also contains the minutes of meeting of the Panchayat held at 2.30 p.m. on the same day to discuss the no confidence motion moved against the Vice President of the Panchayat. It was also passed with eight votes against four. Two members of the CPI did not cast their vote and the motion was supported by the petitioners, two members of the CPI(M) and four members of the BJP. Ext.X3 is the minutes of the meetings of the Panchayat held on 30.11.2009 forenoon to elect the President and in the afternoon to elect the Vice President. It shows that the petitioner in W.P.(C) No.28051/2009, Shri B. Mohammed Kunhi contested for the post of President against Shri K. Bhaskara, a member from Congress. His name was proposed by Smt. Ashalatha, member from BJP and supported by the petitioner in W.P.(C) No.28056/2010. He was elected with six votes against four votes by the Congress nominee. Thus, apart from the votes of petitioners, he got four votes from the BJP. In the election conducted to elect the Vice President, Smt. Sylvia Santanese was a candidate supported by the UDF who belongs to Kerala Congress (M) and the contest was against Smt. Chandrika from BJP. The name of Smt. Chandrika was proposed by the petitioner in W.P. wpc 28051 & 28056 of 2010 5 (C) No.28051/2010 and supported by Smt. Savitha from BJP. Smt. Chandrika from BJP got elected as the Vice President with six votes, four from BJP and two from both the petitioners herein. Exts.X4 to X6 are the documents produced by the Secretary of the Block Panchayat, PW3. 9. From Ext.P4 it is evident that the issue with regard to voluntary giving up of the membership of the party has been discussed by the Election Commission in paragraphs 7 and 8. The following items of evidence have been discussed and relied on in support of the conclusion reached by the Election Commission: (a) the declaration signed by the respondents, (petitioners herein) that they were elected as the official candidates of the Muslim League (Ext.X1); (b) Admission that they have signed the no confidence motion against the President and Vice President. The other signatories of the non confidence motion against the President and Vice President belong to BJP; (c) The stand taken by the petitioners that they had not taken any initiative in moving the no confidence motion is belied, because of Ext.X5 which shows that the notice of no confidence motion against the President was handed over to PW.3, the Authorised Officer by the petitioner in W.P.(C) No.28051/2010, Shri Mohammed Kunhi himself; (d) They have admitted in their evidence that they have not obtained wpc 28051 & 28056 of 2010 6 permission of the Muslim League party to move the no confidence motion against the President, their own colleague in the party and the Vice President, a nominee of the constituent of UDF; and (e) In the election to the posts of President and Vice President the petitioners aligned with the BJP, and voted against the candidates of UDF. Accordingly, the Commission concluded that the petitioners have deliberately acted against the interest of the party by joining the rival BJP members in the Panchayat and the denial of these aspects by the petitioner was found against. 10. The happenings at the time of election to fill up the posts of President and Vice President after the no confidence motions were adopted, have also been discussed in para 8. It was found that the name of the petitioner in W.P.(C) No.28051/2010 was proposed by a member from B.J.P. and supported by the petitioner in W.P.(C) No.28056/2010. He obtained six votes including four from BJP apart from that of the petitioners. He contested against the nominee from Congress representing UDF. The name of Smt. Chandrika from B.J.P. was proposed by the petitioner in W.P.(C) No.28051/2010, Shri Muhammed Kunhi as Vice President against the candidate of the UDF and accordingly the Commission concluded that both the petitioners have aligned themselves against the wpc 28051 & 28056 of 2010 7 U.D.F. and joined hands with the BJP. The evidence of RW.3 was relied upon to show that Muslim League Panchayat Committee has not taken any decision to share power with the BJP. Thus, it was concluded that because of the voting in favour of the no confidence motion and other factors, they betrayed the party, against the known stand of their party. 11. Learned counsel for the petitioners Shri M. Sasindran submitted that the view taken by the Commission cannot be supported at all. It is pointed out that the support given to the no confidence motion against one of the party members by two members of the same party, cannot be termed as a factor to show that they have voluntarily given up membership of the party. It is pointed out that Rws.3 and 4 who were respectively the Treasurer and General Secretary of the IUML Meenja Grama Panchayat Committee, have deposed that the petitioners are still participating in the functions and programmes of the party and this aspect has not been considered by the Commission. By contesting the election to the office of President, they ensured that the Presidentship remained with the I.U.M.L. Therefore, it is contended that the petitioners have never left the party and the party has not taken any action against them for defying any orders of the party. It is pointed out that in the absence of any allegation of disobedience wpc 28051 & 28056 of 2010 8 of the directions of the party and as the violation of whip has not been proved, it cannot be said that the petitioners have voluntarily given up the membership of the party. Reliance is placed on a recent decision of a Division Bench of this Court in Chinnamma Varghese v. State Election Commission (2010 (3) KLT 426). Thus, the argument centres on the absence of any direction from the party to defeat the no confidence motion against the first respondent. Thus, it is contended that the participation in meeting to consider the no confidence motion and taking part in the voting therein, in the absence of such a direction from the party, cannot be termed as voluntarily giving up of the membership of the party. It is submitted that they have only acted in a democratic manner, in exercising their vote, even if it was against the member of their party. 12. Learned counsel appearing for the contesting respondent Shri S. Santhoshkumar and learned Standing Counsel for the Election Commission, Shri Murali Purushothaman opposed the contentions of the learned counsel for the petitioners by relying upon the evidence adduced in the case and the various decisions of this Court and that of the Apex Court. They relied upon the principles stated by the Apex Court in Ravi S. Naik v. Union of India {(1994) Suppl. (2) SCC 641}, Jagjit Singh v. State of Haryana wpc 28051 & 28056 of 2010 9 {(2006) 11 SCC 1}, Rajendra Singh Rana v. Swamy Prasad Maurya {(2007) 4 SCC 274} and that of this Court in Shajahan v. Chathannoor Grama Panchayat & others (2000 (2) KLJ 451), Nazeerkhan v. Kerala State Election Commission and another (2008 (3) KHC 322), Faisal v. Abdulla Kunhi (2008 (3) KLT 534), Varghese v. Kerala State Election Commissiion (2009 (3) KLT 1), Dharma Mani v. Parassala Block Panchayat (2009 (3) KLT 29) and 2009 (4) Shiney Augustine v. Kerala State Election Commission (2009 (4) KHC 527) and the judgment in W.A. No.1774/2009. 13. The main question therefore is whether the disqualification of the petitioners ordered on the ground that they have voluntarily given up their membership of the political party in terms of the provisions for disqualification under the Act, viz. Section 3(1)(a) of the Act is vitiated in the light of any of the circumstances relied upon by them. Sections 3(1)(a) and 3 (1)(b)(ii)of the Act provides as follows: 3. Disqualification on ground of Defection.-- (1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) or in any other law for the time being in force subject to the provisions of this Act.- wpc 28051 & 28056 of 2010 10 (a) “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; (b)(ii) in a meeting of a Panchayat 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.” 14. The Act was brought in with the avowed object of prohibiting defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities. The admitted facts show that they have been elected as official candidates of the Indian Union Muslim League. The no confidence motion against the first respondent herein and the Vice President who belong to Indian National Congress, was signed by them along with a member of BJP, the opposite political party. The petitioner in W.P.(C) No.28051/2010 contested and won against the candidate of the UDF, in the subsequent election to the post of President of the Panchayat. In the election to the post of Vice President of the Panchayat also, they have voted wpc 28051 & 28056 of 2010 11 along with the four members of the BJP. Learned counsel for the petitioners heavily relied upon the observations made by the Division Bench in Chinnamma Varghese's case (2010 (3) KLT 426), in para 22 to contend that signing of the notice of no confidence motion cannot attract the vice of disqualification. Therein, the member who was sought to be disqualified, was an independent member who was supported by CPI (M). The no confidence motion was moved by the UDF and the independent member also signed the notice. In the subsequent election to the post of President, she contested and won. It was alleged that as she was elected as an independent member supported by CPI (M), she is also a member of a political party, viz. CPI(M) for the purpose of applicability of the provisions of the Act. Accordingly, it was contended that she has voluntarily given up her membership of the political party, CPI (M). The Commission's finding was that she withdrew from the coalition LDF. While examining the question whether the signing of the notice of no confidence motion by such an independent member can be said to be a conduct amounting to withdrawal from the coalition, the Bench observed thus in para 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 wpc 28051 & 28056 of 2010 12 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 consequences of rendering such a member disqualified from being a member of the Panchayat, on the mere ground that he or she has signed the notice of no confidence motion.” 15. It is clear from para 23 that the Bench was of the view that coming to the question of voting there is nothing in the law which binds the appellant who is established to be an independent member of the Panchayat to vote in accordance with the desires of the coalition partners since no binding legal direction was ever issued against the said member. While examining the question as to what extent the restrictions with regard to the free choice of voting of a member of Panchayat will apply to independent members, the Bench speaking through the learned Chief Justice, held thus: wpc 28051 & 28056 of 2010 13 “No binding legal direction was ever issued against the appellant. A no confidence motion is essentially a matter of conscience of the voter (member of the Panchayat). The Kerala Local Authorities (Prohibition of Defection) Act, 1999, to some extent, restricts the free choice of the voter (member of the Panchayat) in this regard. Such restriction first came to be introduced by the amendment to the Constitution and introduction of the Tenth Schedule to the Constitution with reference to the Members of the Parliament and the State Legislatures. The law makers thought it fit to bring in such restrictions on the free choice of the holders of the elected offices to vote in any manner as they please during their tenure. The perceived distortions in the political morality prompted the law makers to introduce such provisions which curtail the right of the elected representatives of the various bodies to exercise their voting rights freely in certain contingencies. In the ultimate analysis voting is nothing but a mode of expression of the opinion. Such restrictions, in our view, are required to be enforced strictly in accordance with the tenor of the law. If under the scheme of the Act voting or abstaining from voting contrary to the specific direction of either the political party or the coalition renders the person violating the whip disqualified on the ground of defection, the same conclusion cannot be logically reached in the cases of persons who are not obliged to obey such directions or against whom no direction whatsoever was ever legally issued on the ground that such a conduct would render such a person disqualified wpc 28051 & 28056 of 2010 14 on the ground that the conduct would tantamount to withdrawing from the coalition.” Evidently, these findings were rendered on the basis of the question involved therein whether the independent member could be said to have withdrew from the coalition. They will be of no help to the petitioners herein, as the facts and the situations emanating herein are quite different. 16. The Apex Court and this Court had occasion to address the pleas made similar to that of the petitioners herein in various cases. The Apex Court in Ravi S. Naik's case (1994 Suppl. (2) SCC 641) examined the scope of the expression “voluntarily giving up membership of the political party” and it was held that “the words voluntarily give up his membership are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. It follows 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.” It was further held by the Supreme Court that “from the fact that the member in question accompanied the leader of opposite party to the wpc 28051 & 28056 of 2010 15 Governor and told that the member supported to form a Council of Ministers, show that he is voluntarily giving up his membership from the original party.” Following the said dictum, a Division Bench of this Court in Shajahan's case (2000 (2) KLJ 451) held thus in para 3: “Similarly, the words used in section 3(1)(a) of the Act 'voluntarily gives up his membership' has a wider meaning than resignation. In this case, it is admitted by the petitioner that after submission of his resignation he did not vote for the person who was supported by the 'A' party. The State Election Commission took a clear inference from the conduct that he has voluntarily gave up his membership in the party.” The Bench did not interfere with the order disqualifying the member. 17. In Jagjit Singh's case {(2006) 11 SCC 1} while considering the object for enacting the defection law, it was held thus in para 29: “It is also essential to bear in mind the objects for enacting the defection law also, namely, to curb the menace of defection. Despite defection a Member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities.” Still later, in Rajendra Singh Rana and others v. Swami Prasad Maurya and others {(2007) 4 SCC 270}, a Constitution Bench considered a case wpc 28051 & 28056 of 2010 16 where 13 MLAs from BSP legislative party in U.P. Legislative Assembly approached the Governor to call upon leader of opposition of SP party to form Government, though BSP Government had recommended dissolution of Assembly. The Dictum laid down