G.DHARMA MANI v. NONE

WPC.NO.318/2009 KAPPENDIXPETITIONER'S EXHIBITS:EXT.P1:COPY OF O.P.NO.85/2008 FILED BY PETITIONER BEFORE THE KERALA STATE ELECTION COMMISSION.EXT.P2:COPY OF OBJECTION FILED BY THE PETITIONER IN OP.NO.85/08.EXT.P3:COPY OF THE COMMON ORDER DTD. 30/12/08 PASSED BY THE KERALA STATE ELECTION COMMISSION IN O.P.NO.83/08. O.P.NO.84/08 AND O.P.NO.85/08.EXT.P4:COPY OF THE COMPLAINT FILED BY SMT.VIJAYAM BEFORE THE D.C.C.PRESIDENT.EXT.P5:COPY OF THE DECISIONS TAKEN IN THE MEETING HELD ON 18/02/2008.EXT.P6:COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER AND 4 OTHER MEMBERS OF THE PARTY.EXT.P7:COPY OF THE DEPOSITION OF V.S.SIVAKUMAR.EXT.P8:COPY OF THE DEPOSITION OF PW1.EXT.P9:COPY OF DEPOSITION OF PW3.EXT.P10:COPY OF DEPOSITION OF RW1.EXT.P11:COPY OF DEPOSITION OF RW2.EXT.P12:COPY OF DEPOSITION OF RW3.EXT.P13:COPY OF DEPOSITION OF RW4.RESPONDENT'S EXHIBITS & ANNEXURES:EXT.R2(A): COPY OF THE NOTICE NO.A2/2244/08.EXT.R2(B):COPY OF THE NOTICE NO.A2/2243/08.EXT.R2(C):COPY OF THE DEPOSITION OF PETITIONER BEFORE THE ELECTION COMMISSION./TRUE COPY/P.A.TO JUDGE Kss C.R. P.N.RAVINDRAN, J.======================================W.P.(C)No.318, 337 and 1396 of 2009 ======================================Dated this the 9th day of February 2009JUDGMENT The common order passed by the Kerala State ElectionCommission in three different proceedings initiated against thepetitioners herein under Section 4 of the Kerala Local Authorities(Prohibition of Defection) Act, 1999 is under challenge in thesewrit petitions. They were therefore heard together and are beingdisposed of by this common judgment. 2. The petitioners were elected to the Parassala BlockPanchayat as official candidates of the Indian National Congress inthe election held in September 2005. The petitioner in W.P.(C)No.318 of 2009 was elected from Division No.10, the petitioner inW.P.(C) No.337 of 2009 was elected from Division No.9 and thepetitioner in W.P.(C) No.1396 of 2009 was elected from DivisionNo.1 of the Parassala Block Panchayat. The Parassala BlockPanchayat consists of 13 Divisions. The candidates set up by theIndian National Congress won in eight out of the thirteendivisions and the candidates set up by the Left Democratic Frontin the remaining five. The official candidates of the IndianNational Congress including the petitioners constituted themajority among the members representing the 13 divisions of theParassala Block Panchayat. W.P.(C)Nos.337/09& conn.cases 23. After the elections were held in September 2005, the secondrespondent in W.P.(C) No.318 of 2009 and 337 of 2009 who isthe third respondent in W.P.(C) No.1396 of 2009 was elected asthe President of the Parassala Block Panchayat and Sri.VattavilaVijayan was elected as the Vice President. The petitioners in theseWrit Petitions were not on good terms with the President and VicePresident and the other members of the Parassala Block Panchayatelected as official candidates of the Indian National Congress.The petitioners along with the five members belonging to the LeftDemocratic Front moved Ext.R2(a) and R2(b) No ConfidenceMotions against the President and Vice President respectively ofthe Parassala Block Panchayat. The petitioners are admittedlysignatories to the said No Confidence Motions. The motionswere tabled for consideration by the members of the ParassalaBlock Panchayat at its meeting held on 14.5.2008. The NoConfidence Motions were carried and the President and VicePresident were removed from office. 4. The unseated President of the Parassala Block Panchayat,thereupon instituted O.P.Nos. 83 of 2008, 84 of 2008 and 85 of2008 in the Kerala State Election Commission, hereinafter referredto as the “Commission” for short, for a declaration that the W.P.(C)Nos.337/09& conn.cases 3petitioners herein have committed defection and have therebybecome disqualified to continue as members of the ParassalaBlock Panchayat. She also sought a declaration that they aredisqualified to contest in any election to the local bodies for aperiod of six years. The respondent in O.P.No.83 of 2008 is thepetitioner in W.P.(C) No.337 of 2009, the respondent in O.P.No.84of 2008 is the petitioner in W.P.(C) No.1396 of 2009 and therespondent in O.P.No.85 of 2008 is the petitioner in W.P.(C)No.318 of 2009. The unseated President, who moved theCommission contended that the petitioners in these Writ Petitionshave violated the whip/direction issued by the Indian NationalCongress, when they voted in favour of the No ConfidenceMotions. She also contended that the petitioners have voluntarilygiven up their membership of the Indian National Congress.Paragraph-7 of O.P.No.83 of 2008 filed by the unseated Presidentbefore the Kerala State Election Commission reads as follows:"The respondent has voluntarily abandoned hisMembership from Congress which fielded him as acandidate in the General election. She has voluntarilyabandoned or given up her membership in Congressand joined in the other Party and moving with thesupport of LDF in the Panchayat against the will ofCongress and thereby committed defection and votedagainst the President and Vice President supported byCongress causing loss of power in one BlockPanchayat to Congress. LDF was in the rival front in W.P.(C)Nos.337/09& conn.cases 4the General Election. The workers of UDF andCongress strived hard to get the respondent elected.The subsequent events are also having muchrelevance. Now also the respondent and otherdefected members are being supported by LDF. Therespondent is issuing press releases against theparty. To act against the party and voting against thewill of the party is disloyalty. It is clear case ofdefection liable for disqualification provided underKerala Local Authorities (Prohibition of Defection) Act,1999. The respondent is now in the LDF camp.Because of the unscrupulous acts of the respondent,the morale of the workers of Party and front lost andit has affected the existence of the party. As aNational party Congress functions on the strength ofit's shared belief. The acts of the respondent,independent to the stand of the political party hascaused crack in the shared belief of the party amongthe public and tarnished its political image andexistence. Since the respondent has voluntarily givenup her membership and moved and voted noconfidence against the President and Vice Presidentsponsored by Congress, she is disqualified to continueas Member of Parassala Block Panchayat. Acting inviolation of the instructions of the Political Partyalone is sufficient to hold that the respondent hasvoluntarily given up the membership from the party”.Similar averments have been made in the other petitions also.5. On receipt of notice from the Commission, the petitionersin these Writ Petitions entered appearance and filed objections.They contended that no whip or direction had been issued andthat they have also not voluntarily given up their membership ofthe Indian National Congress. They also contended that in theabsence of a valid whip that was duly served on them, their W.P.(C)Nos.337/09& conn.cases 5association with the No Confidence Motions, cannot result intheir disqualification.6. The Commission, on an analysis of evidence, oral anddocumentary held that no whip or direction had been issued ascontended by the unseated President. The Commission thereafterproceeded to consider whether the petitioners in these WritPetitions are liable to be disqualified for having voluntarily givenup their membership of the Indian National Congress. TheCommission held on an analysis of the evidence, that thepetitioners in these Writ Petitions were elected to the ParassalaBlock Panchayat as the official candidates of the Indian NationalCongress and that their conduct in moving the No ConfidenceMotions against the President and Vice President of the ParassalaBlock Panchayat who were official candidates of the IndianNational Congress establishes that they have voluntarily given uptheir membership of the Indian National Congress. TheCommission also took note of the fact that in the election held on10.6.2008 to elect a new President and Vice President, the nameof petitioner in W.P.(C) No.337 of 2009 was proposed by thepetitioner in W.P.(C) No.318 of 2009 and seconded by thepetitioner in W.P.(C) No.1396 of 2009 and that the petitioner in W.P.(C)Nos.337/09& conn.cases 6W.P.(C) No.337 of 2009 (Smt.L.Vijayam) was elected as thePresident with the support of the members belonging to the LeftDemocratic Front. The Commission held that the conduct of thepetitioners in aligning themselves with the Left Democratic Frontestablishes that they have voluntarily given up their membershipof the Indian National Congress. The Commission accordinglyheld that the petitioners are disqualified under the Kerala LocalAuthorities (Prohibition of Defection) Act, 1999.7. I have heard Sri.V.Philip Mathews and Dr.K.P.Satheesan,the learned counsel appearing for the petitioners,Sri.V.Chithambaresh, the learned Senior Advocate appearing forthe second respondent in W.P.(C) Nos.318 and 337 of 2009 andthe third respondent in W.P.(C) No.1396 of 2009 and Sri.MuraliPuruthothaman, the learned counsel appearing for theCommission. Sri.V.Philip Mathews and Dr.K.P.Satheesan, thelearned counsel appearing for the petitioners contended that thepetitioners can be said to have voluntarily given up theirmembership of the Indian National Congress only if it is provedthat they had acted in violation of any direction issued by thepolitical party to which they belong or any person or authorityduly authorised by the political party, that had been duly served W.P.(C)Nos.337/09& conn.cases 7on them in accordance with the provisions contained in the KeralaLocal Authorities (Disqualification of Defected Members) Rules,2000 hereinafter referred to as the `Rules' for short. Theycontended that as the Commission has held that no suchdirection was issued, the Commission erred in holding that thepetitioners have voluntarily given up their membership of theIndian National Congress. They also challenge the finding of theCommission that they have violated the direction issued by PW2,the President of the Thiruvananthapuram District CongressCommittee. The learned counsel appearing for the petitionerscontended that as no notice had been served on them, byaffixture or by registered post, in the manner prescribed in Rule 4(2) of the Rules, the finding of the Commission that they haveviolated the direction issued by PW2 regarding the No ConfidenceMotion which was tabled on 14.5.2008, cannot be sustained. Thelearned counsel further contended that dissent within the partywas brewing long before the No Confidence Motions were tabled,that the petitioners had only expressed their opinion by votingagainst the President and Vice President and that the mere factthat they had voted in favour of the No Confidence Motionscannot lead to the conclusion that they have voluntarily given up W.P.(C)Nos.337/09& conn.cases 8their membership of the Indian National Congress. The learnedcounsel appearing for the petitioners further contended that amember of a local authority can be disqualified on the groundthat he has voluntarily given up his membership of the politicalparty to which he belongs only if it is proved that he had votedcontrary to the direction issued by the political party to which hebelongs or by a person or authority authorised by the politicalparty and that as the Commission has held that no such directionwas issued and served on the petitioners in the mannerprescribed in the Rules, the finding of the Commission that thepetitioners have voluntarily given up their membership of thepolitical party to which they belong, cannot be sustained and isliable to be set aside.8. Per contra, Sri.V.Chithambaresh, the learned SeniorAdvocate appearing for the petitioner before the Commissioncontended that from the conduct of the writ petitioners, it can bereadily inferred that they have voluntarily given up theirmembership of the Indian National Congress and that to incurdisqualification on that ground, the issuance of a whip ordirection and its service in the manner prescribed are notnecessary. The learned Senior Advocate contended that under W.P.(C)Nos.337/09& conn.cases 9the Kerala Local Authorities (Prohibition of Defection) Act, 1999,a member of a local authority can be disqualified, if he or she hasvoluntarily given up his/her membership of the political party towhich he/she belongs or votes or abstains from voting contraryto and in violation of any direction issued by the political party towhich he or she belongs. The learned Senior Advocate contendedthat the petitioners have by their conduct proved that they havevoluntarily given up their membership of the Indian NationalCongress, thereby incurring the disqualification and that theCommission was therefore right in disqualifying them.9. I have considered the submissions made at the Bar bythe learned counsel appearing on either side. It is not in disputethat the petitioners were elected to the Parassala Block Panchayatas official candidates of the Indian National Congress. It is alsonot in dispute that the petitioners had subscribed theirsignatures to the No Confidence Motions moved against thePresident and Vice President on 14.5.2007. After the NoConfidence Motions were carried, an election was held on10.6.2008 to elect a new President and Vice President and in thatelection, the petitioner in W.P.(C)No.337 of 2009 was elected asthe President of Parassala Block Panchayat with the support of the W.P.(C)Nos.337/09& conn.cases 10other petitioners and the members of the Left Democratic Front.The name of the petitioner in W.P.(C) No.337 of 2009 wasproposed by the petitioner in W.P.(C) No.318 of 2009 andseconded by the petitioner in W.P.(C) No.1396 of 2009. Sincethere is no dispute about these facts, the only question thatarises for consideration is whether, by reason of their conduct,the petitioners can said to have voluntarily given up theirmembership of the Indian National Congress.10. The Kerala Local Authorities (Prohibition of Defection) Act,1999, hereinafter referred to as the “Act” for short came intoforce on 2.10.1995. Section 2(vii) of the Act defines the term“local authority” to mean a Panchayat at any level or aMunicipality. Section 2(x) defines the term “panchayat” to mean aVillage Panchayat, a Block Panchayat or a District Panchayat.Section 2(xi) defines the term “political party” to mean a politicalparty registered under Section 29A of the Representation of thePeople Act, 1951. Section 3(1)(a) of the Act which is relevant forthe purpose of this case inter alia stipulates that if a member oflocal authority belonging to any political party voluntarily gives uphis membership of such political party, or if such member,contrary to any direction in writing issued in the manner W.P.(C)Nos.337/09& conn.cases 11prescribed by the political party to which he belongs or by aperson or authority authorised by it in this behalf, votes orabstains from voting in a voting on a No Confidence Motionagainst the President or the Vice President of the Panchayat, heshall be disqualified for being a member of that local authority.The Explanation to Section 3 of the Act states that for thepurpose of Section 3 an elected member of a local authority shallbe deemed to be a member belonging to the political party, ifthere is any such party, by which he was set up as a candidate forthe election. 11. Paragraph 2(1)(a) of the Tenth Schedule to theConstitution of India stipulates that a member of either House ofParliament or the Legislative Assembly as the case may be,belonging to any political party shall be disqualified for being amember of the Parliament or the Legislative Assembly as the casemay be, “if he has voluntarily given up his membership of suchpolitical party. . The Apex Court has in Ravi S.Naik v Union ofIndia and others (AIR 1994 SC 1558), interpreting the provisionsof the Tenth schedule to the Constitution of India held that evenin the absence of a formal resignation from the membership of aparty, inference can be drawn from the conduct of a member that W.P.(C)Nos.337/09& conn.cases 12he has voluntarily given up his membership of the political partyto which he belongs. It was held that the words “voluntarilygiven up his membership” are not synonymous with resignationand have a wider connotation and that a person can voluntarilygive up his membership of a political party even though he hasnot tendered his resignation from the membership of that party. 12. In Rajendra Singh Rana and others v Swami PrasadMaurya and others (AIR 2007(4) SCC 270), a Constitution Benchof the Apex Court held that the act of disqualification occurs on amember voluntarily giving up his membership of a political partyor at the point of defiance of the whip issued to him. It was heldthat the act that constitutes disqualification in terms ofparagraph 2 of the Tenth schedule to the Constitution of India isthe act of giving up the membership or defiance of the whip andthat the fact that a decision in that regard may be taken in thecase of voluntarily giving up, by the Speaker at a subsequentpoint of time, cannot and does not postpone the incurring of thedisqualification by the act of the legislator. The Apex Court alsoheld that from the conduct of the 13 members of Bahujan SamajParty in meeting the Governor accompanied by the GeneralSecretary of the Samajwadi Party, the party in the opposition and W.P.(C)Nos.337/09& conn.cases 13submission of letters requesting the Governor to invite theleader of that opposition party to form a Government as againstthe advice of the Chief Minister belonging to their original partyto dissolve the assembly, an irresistible inference that the said13 members have clearly given up their membership of theBahujan Samaj Party arises. It was held that no further enquiry orevidence is needed to find that their action comes withinparagraph 2(1)(a) of the Tenth schedule to the Constitution ofIndia. 13. In Shajahan v Chathannoor Grama Panchayat andothers (2000(2) KLJ 451), a Division Bench of this Court upheldthe decision of the Commission which had found that by votingagainst the political party to which he belonged, theappellant/writ petitioner had voluntarily given up his membershipof the party to which he belonged and was therefore disqualified.The Division Bench overruled the contention of the appellantthat as his resignation had not been accepted, it cannot be saidthat he had ceased to be a member of the political party to whichhe originally belonged. The Division Bench also held that if on theevidence, the Commission has come to the conclusion that thepetitioner has voluntarily given up his membership, that is a W.P.(C)Nos.337/09& conn.cases 14possible view on the evidence adduced and this Court cannot sitin appeal over the said finding.14. In Faisal v Abdulla Kunhi (2008(3) KLT 534), a learnedSingle Judge of this Court considered the question whether thepetitioner who acted contrary to the direction issued by theDistrict Secretary of the party to which he belonged to resignfrom the Presidentship of the Panchayat and did not participate inthe meeting in which the No Confidence Motion against him wasmoved by members belonging to his own party, despite a whipissued by the party was liable to be disqualified. The learnedSingle Judge held that the words “voluntarily giving upmembership of the political party” is not to be equated withceasing to be a member of his party by resignation and that fromthe conduct of the petitioner if an inference can be drawn that hehas voluntarily given up the membership of the political party, heis liable to be disqualified. Reliance was placed by the learnedSingle Judge, on the decision of a Division Bench of this Court inWrit Appeal No.2351 of 2005 wherein it was held that acceptanceof the nomination by the appellant as a candidate against theofficial candidate of the party amounts to voluntary abandonmentof the membership of the political party. W.P.(C)Nos.337/09& conn.cases 1515. In Nazeer Khan v Kerala State Election Commission(2008 (3) Kerala High Court Cases 322), a learned Single Judge ofthis Court held that if from the conduct of the member, it ispossible to draw an inference that he had voluntarily given up hismembership in his political party, the authority is justified inpassing an order disqualifying him. The decision of the learnedSingle Judge in Nazeer Khan S. v Kerala State ElectionCommission (supra), was upheld by a Division Bench of thisCourt in Writ Appeal No.1728 of 2008.16. In the instant case, it is not in dispute that the petitionerswere elected to the Parassala Block Panchayat as officialcandidates of the Indian National Congress. The Indian NationalCongress is admittedly a political party registered under Section29A of the Representation of the People Act, 1951. It is also notin dispute that they had actively participated in the NoConfidence Motions moved by the opposition against thePresident and Vice President, of the Parassala Block Panchayat,who were also official candidates of the Indian NationalCongress. The petitioners are admittedly signatories to the NoConfidence Motions and the motions were carried with theirsupport. Though their contention that no whip was issued was W.P.(C)Nos.337/09& conn.cases 16accepted by the Commission, the Commission disqualified themon the ground that they have voluntarily given up theirmembership of the Indian National Congress. Though the learnedcounsel for the petitioners contend that the finding of theCommission that the petitioners had acted contrary to thedirections issued by PW2, the President of theThiruvananthapuram District Committee of the Indian NationalCongress cannot be sustained, I am of the opinion that on theadmitted facts of this case, it is not necessary to go into thecorrectness of the said finding. 17. Under the Act, a member can be disqualified if he hasvoluntarily given up the membership of the political party towhich he belongs or acts in defiance of a whip/direction issued bythe political party. Disqualification for voluntarily giving up themembership of one's party, is not dependant on the violation ofthe whip. The intention of the Act is that the member who hasviolated the whip or has abandoned the membership of thepolitical party to which he belongs shall be disqualified. It is notnecessary to hold that the member has violated the whip in orderto hold that he has voluntarily abandoned the membership of hispolitical party. The grounds for disqualification are distinct and W.P.(C)Nos.337/09& conn.cases 17are not interlinked. Therefore even if this Court were to hold thatthe petitioner before the Commission has not proved that PW2had issued and served on the writ petitioners a directionregarding the voting on the No Confidence Motions that weretabled on 14.5.2008, the Commission was justified in holdingthat the petitioners have voluntarily abandoned their membershipin the Indian National Congress. 18. In the election held on 10.6.2008 after the No ConfidenceMotions carried, to elect a new President the petitioner in W.P.(C)No.337 of 2009 was elected as the President of the ParassalaBlock Panchayat with the support of the petitioners in the othertwo writ petitions and the five members of the Left DemocraticFront. The official candidate of the Indian National Congress wasdefeated. From the conduct of the petitioners in moving the NoConfidence Motions against the President and the Vice Presidentof the Panchayat and voting in favour of the No ConfidenceMotions and their subsequent conduct in getting the petitioner inW.P.(C) No.337 of 2009 elected as the President with the supportof the Left Democratic Front, an irresistible inference can bedrawn that they have voluntarily given up their membership in theIndian National Congress. As held by the Apex Court in Rajendra W.P.(C)Nos.337/09& conn.cases 18Singh Rana and others v. Swami Prasad Maurya and others(supra), on the admitted facts, no further enquiry or evidence isrequired to hold that their action comes within the purview ofSection 3 of the Kerala Local Authorities (Prohibition of Defection)Act, 1999. The pleadings and the evidence before theCommission also justify the said conclusion. The Commissionwas therefore right in holding that the petitioners have incurreddisqualification by voluntarily giving up their membership of theIndian National Congress. For the reasons stated above, I hold that there is no merit inthe challenge to the order passed by the Commission. The WritPetitions fail and are accordingly dismissed. No costs. P.N.RAVINDRAN, JUDGE css/