Krishnakumar .S vs Kadakkavoor Grama Panchayath
2021 Latest Caselaw 3224 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                     WP(C).No.3897 OF 2020(J)


PETITIONER:

               KRISHNAKUMAR .S,
               AGED 46 YEARS, S/O.SIVADASAN, PATTARIVILA,
               PALLIMUKKU, KADAKKAVUR.P.O, MEMBER,
               WARD NO.12, KADAKKAVUR GRAMA PANCHAYAT,
               TRIVANDRUM-695306.

               BY ADVS.
               SRI.M.BALAGOVINDAN
               SRI.T.K.ANANDA PADMANABHAN

RESPONDENTS:

      1        KADAKKAVOOR GRAMA PANCHAYATH
               REPRESENTED BY ITS SECRETARY, KADAKKAVOOR,
               TRIVANDRUM-695306.

      2        KERALA STATE ELECTION COMMISSION,
               REPRESENTED BY ITS SECRETARY,
               OFFICE OF THE CORPORATION BUILDING,
               L.M.S.JUNCTION, THIRUVANANTHAPURAM-695033.

      3        A.MADHUSUDHANAN NAIR,
               S/O.APPUKUTTAN PILLAI, MELEBUNGLOW,
               KEEZHATTINGAL.P.O, KADAKKAVOOR,
               TRIVANDRUM-695306.

               R1 BY ADV. SRI.THOMAS ABRAHAM, SC, KADAKKAVOOR
               GRAMA PANCHAYAT
               R2 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-01-2021, THE COURT ON 29-01-2021 DELIVERED THE FOLLOWING:
 WP(C) No.3897 of 2020                 2




               Writ Petition (C) No.3897 of 2020
              -----------------------------------------------


                           JUDGMENT

Petitioner was elected to the Committee of

Kadakkavoor Grama Panchayat in the election held during

November, 2015 representing the political party, Indian

National Congress(I). As a member of the Committee of the

Panchayat, the petitioner was also elected to the Development

Standing Committee of the Panchayat consisting of four

members, of which the remaining three members belonged to

the political party, CPI(M). One among the said three members

of the Standing Committee belonging to the political party

CPI(M) was the Chairman of the said Standing Committee. A No

Confidence Motion was moved by the remaining two members

in the Standing Committee belonging to the political party

CPI(M) against the Chairman of the said Committee belonging

to their own political party. The petitioner did not attend the

meeting scheduled to move the No Confidence Motion.

Consequently, the No Confidence Motion failed.

2. The third respondent, another member of the

Panchayat belonging to the political party Indian National

Congress(I), thereupon preferred Ext.P1 petition before the

State Election Commission under Section 4 of the Kerala Local

Authorities (Prohibition of Defection) Act, 1999 alleging that

the competent authority of Indian National Congress(I) had in

fact issued a whip to the petitioner directing to support the No

Confidence Motion moved against the Chairman of the

Development Standing Committee of the Panchayat; that the

petitioner abstained from the meeting scheduled for moving the

No Confidence Motion defying the whip issued by the party and

the petitioner is therefore disqualified to continue as a member

of the Panchayat in terms of Section 3(1) of the Kerala Local

Authorities (Prohibition of Defection) Act, 1999. The State

Election Commission allowed Ext.P1 petition and declared that

the petitioner is disqualified for being a member of

Kadakkavoor Grama Panchayat and also disqualified from

contesting as a candidate in election to any local bodies for a

period of six years. Ext.P10 is the order issued by the State

Election Commission on Ext.P1 petition. Ext.P10 is under

challenge in the writ petition.

3. The case set out by the petitioner in the writ

petition is that since the counsel for the petitioner was unable

to appear before the State Election Commission on 14.05.2019,

on which day, the case stood posted for the evidence of the

third respondent, he preferred Ext.P11 application for

adjournment of the matter and the impugned order was passed

without considering the said application, after setting the

petitioner ex parte in the proceedings. According to the

petitioner, in a case of this nature, the State Election

Commission ought to have afforded to the petitioner an

effective opportunity to contest the petition instituted against

him.

4. A statement has been filed by the State Election

Commission as directed by the court.

5. Heard the learned counsel for the petitioner as

also the learned Standing Counsel for the State Election

Commission.

6. The impugned order indicates that the State

Election Commission has found on the basis of the oral and

documentary evidence adduced by the third respondent that

the petitioner abstained deliberately from the meeting

convened for moving the No Confidence Motion against the

Chairman of the Development Standing Committee of the

Panchayat in defiance to the whip issued by the political party

in whose ticket he was elected to the Committee of the

Panchayat and the petitioner is, therefore, disqualified not only

for being a member of the Panchayat but also from contesting

as a candidate in election to any other local bodies in the State

for a period of six years.

7. Along with the statement, the State Election

Commission has made available the extract of the diary

maintained in respect of Ext.P1 petition as Annexure R2(a). It is

evident from the said diary extract that Ext.P11 application was

though allowed by the State Election Commission on

14.5.2019, the third respondent did not give evidence on

14.05.2019. Instead, the third respondent gave evidence in the

proceedings on 02.08.2019. It is also evident from the diary

that the matter was adjourned thereafter at the instance of the

third respondent for further evidence on his side and on

13.12.2019, it was submitted on behalf of the third respondent

that there is no further evidence on his side. It is seen that the

matter was accordingly adjourned to 31.12.2019 for the

evidence of the petitioner. It is also seen that the petitioner was

absent on 31.12.2019 and consequently, he was set ex parte in

the proceedings. It is further seen that neither the petitioner nor

his counsel appeared in the proceedings thereafter and the

impugned order was accordingly passed on 04.02.2020. It is

thus clear that the case set out by the petitioner is factually

incorrect. It is also clear from the materials on record that the

petitioner was not diligent at all in defending Ext.P1 petition.

No circumstances warranting indulgence of this Court to afford

the petitioner yet another opportunity to defend Ext.P1 petition

is made out. The writ petition is therefore, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE

YKB

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN O.P.93/2018 FILED BEFORE THE 2ND RESPONDENT DATED 10/8/2018

EXHIBIT P2 TRUE COPY OF THE WHIP ISSUED BY THE DISTRICT CONGRESS COMMITTEE PRESIDENT DATED 11/07/2018

EXHIBIT P3 TRUE COPY OF THE SUMMONS DATED 13/08/2018

EXHIBIT P4 TRUE COPY OF THE OBJETION IN O.P.93/2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 19/09/2018

EXHIBIT P5 TRUE COPY OF THE O.P.TICKET DATED 10/07/2018

EXHIBIT P6 TRUE COPY OF THE HAEMOTOLOGY REPORT DATED 12/07/2018

EXHIBIT P7 TRUE COPY OF THE NO CONFIDENCE MOTION DATED 02/07/2018

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 17/03/2019

EXHIBIT P9 TRUE COPY OF THE APPLICATION ALONG WITH THE AFFIDAVIT DATED 13/05/2019

EXHIBIT P10 TRUE COPY OF THE ORDER IN O.P.93/2018 OF THE 2ND RESPONDENT DATED 04/02/2020

EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 14/05/2019

RESPONDENT'S/S EXHIBITS:

ANNEXURE - R2(A) TRUE COPY OF THE EXTRACT OF DIARY IN OP NO.93/2018 BEFORE THE 2ND RESPONDENT.

ANNEXURE - R2(B) TRUE COPY OF THE ORDER DATED 14.05.2019 IN O.P.NO.93/2018 PASSED BY THE 2ND RESPONDENT.

//TRUE COPY//

PA TO JUDGE