Jiji Saji vs State Of Kerala

Kerala High Court

Jiji Saji vs State Of Kerala on 20 May, 2024

Author: N. Nagaresh

Bench: N.Nagaresh

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                  RP NO. 1333 OF 2023
AGAINST THE JUDGMENT DATED 01.08.2023 IN WP(C) NO.23603
            OF 2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/PETITIONER

         JIJI SAJI
         AGED 49 YEARS
         W/O. SAJI P GEORGE
         PUTHENVILAYIL
         VELLAPPARA P.O
         PATHANAMTHITTA, PIN - 689691

         BY ADVS.
         V.PHILIP MATHEWS
         ASHISH MATHEW JOHN
         ABY SKARIA


RESPONDENTS/RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY THE SECRETARY TO GOVERNMENT
         LOCAL SELF-GOVERNMENT DEPARTMENT SECRETARIATE,
         THIRUVANANTHAPURAM, PIN - 695007
    2    STATE ELECTION COMMISSION
         REPRESENTED BY ITS SECRETARY
         KERALA STATE ELECTION COMMISSION VIKAS BHAVAN
         JANAHITHAM NEAR LEGISLATIVE ASSEMBLY
         THIRUVANANTHAPURAM, PIN - 695033
    3    PRAVEEN PLAVILAYIL
         AGED 43 YEARS
         S/O.VARADARAJAN, PLAVILAYIL VEEDU,
         MANGARAM KONNI P.O PATHANAMTHITTA,
         PIN - 689691
    4    KONNI BLOCK PANCHAYAT
         REPRESENTED BY ITS SECRETARY
         KIZHAVALLOOR POST KERALA, PIN - 689691
 RP No.1333/2023
                            :2:




          BY ADVS.
          SRI.DEEPU LAL MOHAN(STANDING COUNSEL) FOR R2
          SMT.KAVERI MOHAN FOR R3
          SMT.REKHA C.NAIR, SR.GOVERNMENT PLEADER
          SRI.V.K.SUNIL (STANDING COUNSEL)FOR R4
          MATHEW A KUZHALANADAN(K/1609/2001)
          KURIAKOSE VARGHESE(D/2090/2003)
          V.SHYAMOHAN(K/000824/2006)
          SRADHAXNA MUDRIKA(K/815/2020)
          BINCY JOB(K/001080/2017)

     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 RP No.1333/2023
                                        :3:




                            N. NAGARESH, J.

           `````````````````````````````````````````````````````````````
                        R.P. No.1333 of 2023
                                  in
                       W.P.(C) No.23603 of 2023

           `````````````````````````````````````````````````````````````
                 Dated this the 20th day of May, 2024


                                  ORDER

~~~~~~ Petitioner in W.P.(C) No.23603/2023 has filed this review petition alleging errors in the judgment dated 01.08.2023, on the face of the records.

2. The writ petition was filed by the petitioner challenging Ext.P2 order of the 2 nd respondent-State Election Commission disqualifying the petitioner from being a member of the 4th respondent-Block Panchayat. The 3 rd respondent had filed OP No.20/2021 before the State Election RP No.1333/2023 :4: Commission alleging that the petitioner contested and won elections to the Konni Block Panchayat as official candidate of Indian National Congress (INC). Violating the whip/direction in writing issued by the President, Pathanamthitta DCC, the petitioner voted in favour of the Non Confident Motion moved by the LDF. The 3 rd respondent alleged that the petitioner is therefore liable to be disqualified under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

3. The petitioner resisted the OP. The petitioner stated that she contested elections as an independent candidate and that she is not a member of INC or any other political party. The petitioner disputed the authority of the President of DCC to issue any direction in writing / whip to the petitioner. There was no valid whip and no such whip was served, urged the petitioner. The 2 nd respondent- Election Commission allowed the OP and declared that the petitioner is disqualified under Section 3(1)(a). RP No.1333/2023 :5:

4. The said Ext.P2 order was challenged by the petitioner in W.P.(C) No.23603/2023. This Court found that Ext.X1 document would show that the petitioner has given a statutory declaration aligning with INC/UDF. This Court held that there exists evidence that the petitioner did not accept the whip and consequently the whip was served by affixture. This Court held that the Election Commission's finding that there is a valid whip and that the petitioner has violated the whip, is justified. Ext.P2 order of the State Election Commission was consequently upheld by this Court. The writ petition was dismissed as per judgment dated 01.08.2023.

5. Aggrieved by the judgment in the writ petition, the petitioner preferred W.A. No.1476/2023. A Division Bench of this Court disposed of the writ appeal with liberty to the petitioner-appellant to file a Review Petition before the Single Judge raising all contentions and producing all documents which are sought to be produced. The State Election Commission was directed to produce the records with regard RP No.1333/2023 :6: to the Defection case. Thereupon, the petitioner has preferred this Review Petition.

6. In the Review Petition, the petitioner contended that she did not contest election as a candidate of Indian National Congress. There was an understanding that the petitioner will be entitled to act independently. The petitioner urged that there was no service of valid whip in person or by affixture. Names of witnesses are not mentioned in Ext.P1. Details of Whatsapp message sending the whip, were not mentioned. The petitioner further argued that the DCC President is not authorised or empowered by law to issue any direction in writing.

7. The petitioner further argued that this Court has relied on Ext.X1 to hold that the petitioner had given a statutory declaration aligning with INC/UDF. Ext.X1 series of documents are from X1(a) to X1(m). There is no reference to Ext.X1(m) in the judgment. The question whether DCC President is authorised to issue whip, is not considered. RP No.1333/2023 :7:

8. The petitioner further held that lack of clarity and shortcomings in Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 was not considered. The judgment sought to be reviewed was rendered without proper appreciation of the basic issues involved in the case.

9. Standing Counsel representing the 2 nd respondent resisted the review petition. Relying on a Division Bench judgment of this Court in Varghese V.V. and another v. Kerala State Election Commission and another [2009 (3) KLT 1], it was argued that the petitioner was elected to the Block Panchayat as official candidate of INC and having continued so in the Block Panchayat and voted in favour of the No Confidence Motion moved by the rival political parties, the petitioner has incurred the disqualification of voluntarily giving up membership in the political party.

10. The Standing Counsel representing the 2 nd respondent further argued that a judgmental error is not a reviewable order, nor can it be termed an error on the face of the record. Where an alleged error is far from self evident RP No.1333/2023 :8: and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by a Review Petition. There is no error apparent on the face of the record. The Review Petition is therefore liable to be dismissed.

11. I have heard the learned counsel for the review petitioner, the learned Senior Government Pleader representing the 1st respondent and respective Standing Counsel representing respondents 2 and 4. I have also heard the learned counsel appearing for the 3 rd respondent.

12. The petitioner states that she did not contest election as a candidate of Indian National Congress. I have perused the pleadings in the Review Petition and the writ petition and the files relating to disqualification made available by the Standing Counsel for the State Election Commission. Annexure-A2 produced by the petitioner along with the review petition contains Form-2 declaration made by the petitioner on 21.12.2020. The signed declaration of the petitioner shows that the petitioner has been elected as a RP No.1333/2023 :9: member, contesting elections as a candidate of INC. The Register showing the party connection of members of Panchayat, which also forms part of Annexure-A2, would show that the petitioner has won the election in the symbol "Hand" and the petitioner belongs to Indian National Congress.

13. The Kerala Local Authorities Election Symbols (Reservation and Allotment) Order, 2017 in Clause 4 provides that the candidates of a recognised National party or a recognised State party shall be assigned the same symbol reserved to it by the Election Commission of India. Clause 8 provides that a candidate shall be deemed to be set up by a political party only if the candidate has mentioned the name of political party in the prescribed column in the nomination paper and has chosen the symbol, if any, reserved or allotted for that party in the nomination paper.

14. It is not in dispute that the petitioner has chosen the symbol of a National party, the Indian National Congress. The contention of the petitioner is that she has accepted the RP No.1333/2023 : 10 : symbol of INC on condition that she should be entitled to act independently. When the petitioner has submitted signed nomination and accepted the symbol of INC and contested the elections and thereafter submitted a signed declaration in Form-2 showing her as won in the election as a candidate of INC, the petitioner cannot take a different stand thereafter. The Election Commission has rightly found that the petitioner belongs to Indian National Congress.

15. The further argument of the petitioner is that there was no service of valid whip in person or by affixture. PW3 Babu George, who was DCC President at the relevant time, has given oral evidence to the effect that he had issued the direction in writing / whip. PW4 has proved Ext.A6 Whatsapp message. PW5 has stated that he had gone to the residence of the petitioner to serve the whip. The petitioner was not available in the house. Thereafter, as directed by the DCC President, notice was served by affixture. The oral and documentary evidence available would show that the whip was served on the petitioner by affixture. RP No.1333/2023 : 11 :

16. The main argument of the petitioner is that the DCC President, who has issued the whip, is not authorised or empowered by law to issue any direction in writing. Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 deals with disqualification on ground of defection. For disqualifying a candidate for acting contrary to any direction / whip, such whip shall be 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.

17. Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 provides that such direction shall be given by a person authorised by the political party to allot symbol. PW3, who was the DCC President at the relevant time, has deposed before the State Election Commission that he had allotted the symbol to the candidates of Indian National Congress officially in his capacity as DCC President. The evidence is therefore clear that the said PW3 is authorised to issue directions in writing. RP No.1333/2023 : 12 :

18. Rule 4 of the Rules, 2000 also provides that such direction in writing shall be given on the letter head of the political party duly signed and sealed. Ext.X3 would show that the direction has been given in writing in a letter head and the communication bears seal of the party. Ext.A3 also is in letter head and bears signature of PW3 and seal of the party. Therefore, the requirements of the Act and the Rules stand satisfied.

19. Relying on the judgment of this Court in Sivadasan v. Kerala State Election Commission [2020 (6) KLT 484], the petitioner contends that lack of clarity and shortcomings in the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 were not considered. The judgment in Sivadasan (supra) dealt with a case where one candidate contested as INC candidate and another candidate was supported by the coalition consisting of INC. The facts of the case are clearly distinguishable and the judgment in Sivadasan (supra) is of no avail to the petitioner.

: 13 :

20. The petitioner would further submit that the State Election Commission has not considered the maintainability of the OP in spite of the direction given by this Court in W.P. (C) No.17901/2022. Going through Ext.P2 order of the State Election Commission, I find that the Commission has specifically noted the maintainability issue raised by the petitioner in paragraph 3 (page 4) as also in page 14 of the order. Ext.P2 final order has been passed after noting the arguments of the petitioner in this regard. Therefore, it has to be held that the State Election Commission has rejected the contentions of the petitioner as regards non- maintainability of the OP.

21. The petitioner is trying to make out an issue of error in the judgment in writ petition producing additional documents in the review petition. The Form-A declaration of the petitioner would show that the petitioner has admitted that she was a candidate of the political party INC. The Register showing the party connection of members of Panchayat, which is part of Annexure-A2, would also show RP No.1333/2023 : 14 : that the petitioner contested in the symbol "Hand" and she belongs to INC/UDF. The documents produced by the petitioner would only reinforce the order of the State Election Commission. In the facts of the case, I do not find any error in the judgment in the writ petition, warranting a review.

The review petition fails and it is hence dismissed.

Sd/-

                                        N. NAGARESH, JUDGE
aks/16.05.2024
 RP No.1333/2023
                            : 15 :



                  APPENDIX OF RP 1333/2023

PETITIONER'S ANNEXURES

ANNEXURE A1        TRUE COPY OF THE JUDGMENT DATED
                   28.11.2023 IN W.A.NO 1476/2023
ANNEXURE A2        TRUE COPY OF I.A.NO 2/2023 IN W.A NO
                   1476/2023