Kerala High Court
T.L. Sabu vs Kerala State Election ... on 13 April, 2023
W.P.(C).No.6172 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
WP(C) NO. 6172 OF 2023
PETITIONER:
T.L. SABU
AGED 54 YEARS
S/O LUKA , THURUTHIYIL HOUSE, MULLUAKUNNU,
SULTHAN BATHERY. P.O, WAYAND DISTRICT, PIN -
673592
BY ADV P.VISHNU PRASAD
RESPONDENTS:
1 KERALA STATE ELECTION COMMISSIONER
VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM, PIN - 695033
2 K.J.DEVASSIA
S/O JOESPH, KANNUTHOTTIYIL HOUSE, SULTHAN
BATHERY. P.O, WAYANAD DISTRICT, PIN - 673592
BY ADVS.
SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION
COMMISSION, KERALA
Sujith Mathew Jose
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 8.03.2023, THE COURT ON 13.04.2023 DELIVERED
THE FOLLOWING:
W.P.(C).No.6172 of 2023
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ANU SIVARAMAN, J.
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W.P.(C).No.6172 of 2023
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Dated this the 13th day of April, 2023
JUDGMENT
1. This writ petition is filed challenging Exhibit P9 order of the
State Election Commission allowing O.P.No.18/2019 filed by
the 2nd respondent. The O.P. had been filed under Section 4 of
the Kerala Local Authorities (Prohibition of Defection) Act,
1999 (hereinafter referred to as 'the Act') for declaring that
the petitioner had defected and was hence disqualified to
continue as Member of Sulthan Bathery Municipality. It is
submitted that the petitioner had contested the local body
elections as the Member of the "Kerala Congress(M)" with the
election symbol "Two Leaves". He was elected from Ward
No.23 and was thereafter elected as Chairman of the
Municipality with the support of the other elected members of
the Left Democratic Front. While so, the Kerala Congress (M)
took a policy decision to join the United Democratic Front
W.P.(C).No.6172 of 2023
coalition. The petitioner was required to resign from the post
of Chairman of the Municipality. The learned counsel for the
petitioner submits that the decision of the Kerala Congress
(M) District Committee that the petitioner should resign from
the post of Chairman was not properly communicated to the
petitioner, as provided in the Act and the Rules and that
therefore the finding in Exhibit P9 that the petitioner had
become disqualified is illegal and unsustainable. It is
submitted that the petitioner had never received the written
communication allegedly issued by the 2 nd respondent. It is
stated the petitioner's wife, who was examined as RW3, had
denied her signature in the acknowledgment receipt Exhibit
A5(a) produced before the 1st respondent. It is stated that
the allegation that the petitioner had conducted a press
meeting was also not proved in any manner known to law and
that the order passed was, therefore, clearly illegal and
unsupportable.
2. The learned counsel for the petitioner places reliance on a
decisions of this Court reported in Manoj Madhavasseril v.
W.P.(C).No.6172 of 2023
Kerala State Election Commission [2018 (1) KLT 1047] to
contend that when a member of a political party which forms
part of a coalition acts contrary to the interest of the coalition
a disqualification is not attracted under Section 3 of the Act
and a decision in George, Elamplakkadu @ Vakkachan
Powathil v. A.V.Mathew @ Samkutty Vettupalam and
others [ 2020 (5) KHC 297] to contend that service of a copy
of direction in writing to the Secretary is absolutely
mandatory for a finding as to defection.
3. Referring to Section 3 of the Act, it is specifically contended
that the Act as well as the Rules framed thereunder
specifically provide for the service of the direction in writing
to the member concerned in the manner prescribed and that a
copy of such direction shall be given to the Secretary of the
Local Self Government Institution concerned. It is, therefore,
contended that the finding in Exhibit P9 to the effect that the
petitioner had defected and had therefore incurred the
disqualification is completely illegal.
W.P.(C).No.6172 of 2023
4. The learned standing counsel appearing for the Commission
submits that there are two specific limbs to the
disqualification as provided in Section 3. Section 3(1)(a)
provides that if a member of a 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 belongs votes or
abstain from voting as directed by the political party, he
incurs the disqualification of defection. It is submitted that it
is only in the case of the 2 nd limb that is, acting in a manner
contrary to any direction in writing issued by the political
party that the question of service of the direction in writing
becomes relevant. It is submitted that in the instant case the
question is of voluntarily giving up of the membership of the
party. It is submitted that the petitioner, who had contested
the election as a member of the Kerala Congress (M) had been
directed to resign from the post of Chairman of the
Municipality which he occupied on account of his membership
in the said political party. The political party had left the
coalition and had directed the petitioner to resign from the
W.P.(C).No.6172 of 2023
post of Chairman on his refusal to do so, he had acted
contrary to the directions and interest of the political to which
he belongs and had therefore incurred the disqualification of
voluntarily giving up of membership in the political party. It is
submitted that this is the finding in the judgment under
challenge and that therefore the other contentions raised by
the petitioner with regard to mode of service of the
communication which are applicable only in a case where a
whip is involved are completely irrelevant. The learned
standing counsel also relies on the decisions of this Court in
Faisal P.A v. K.A.Abdulla Kunhi and Another [2008(3)
KHC 26] and Shameena Ibrahimkutty and others v.
Kerala State Election Commission and Another [2020(6)
KHC 354].
5. Having considered the contentions advanced on either side, I
notice that the allegations as raised in Exhibit P1 petition
against the petitioner were specifically with regard to his
voluntarily giving up of membership in the political party on
the banner on which he was elected as Chairman of the
Municipality. The petitioner does not deny any of the
W.P.(C).No.6172 of 2023
foundational facts that is, that he was a member of the Kerala
Congress(M), that the Kerala Congress (M) was part of the
LDF coalition at the time of the election, that the Kerala
Congress (M) had left the coalition and that he was required
to resign from the post of Chairman which he occupied on the
basis of his membership in the political party and that he had
refused to do.
6. Section 3(1)(a) of the Act reads 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 other
provisions of this Act,
(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,-
(i) in a meeting of a Municipality, in an election of its
Chairperson, Deputy Chairperson, a member of standing
Committee or the Chairman of a standing committee; or
(ii) in a meeting of a Panchayat, in an election of its President,
Vice President, a member of a Standing Committee; or the
W.P.(C).No.6172 of 2023
Chairman of the Standing Committee; or in an voting on a no-
confidence motion against any one of them except a member of
a Standing Committee."
7. This Court in Shameena Ibrahimkutty and others v.
Kerala State Election Commission and Another [2020(6)
KHC 364] held that where there is a direction issued by a
political party to a person, who has contested the elections as
a member of the same to step down from any post and if the
said direction is not obeyed, that would attract the 1 st limb of
Section 3(1)(a) relating to voluntarily giving up of
membership and that it is only where the 2 nd limb is invoked
that the mode of communication of the whip would become
relevant.
8. In Faisal P.A. v. Abdulla Kunhi and Another [2008 (3) KHC
267] also this Court specifically considered the issue of
voluntarily giving up of membership and held that a person
who, by his conduct defies the party directives and voluntarily
abadons his party membership is liable to be disqualified by
the Election Commission on the ground of defection.
W.P.(C).No.6172 of 2023
9. The decisions relied on by the learned counsel for the
petitioner are with regard to the mode of the serving of a
direction in writing (Whip) which forms the 2 nd limb of Section
3(1)(a).
In the above view of the matter and in view of the fact that it
was these facts which were considered in Exhibit P9 to find
that the petitioner had incurred the disqualification of
defection, I am of the view that the challenge against Exhibit
P9 on the grounds raised by the petitioner cannot succeed.
The writ petition fails and the same is accordingly dismissed.
sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.6172 of 2023
APPENDIX OF WP(C) 6172/2023
PETITIONER EXHIBITS
Exhibit1 TRUE COPY OF THE O.P NO: 18/2019 DATED
12.04.2019 FILED BEFORE THE STATE
ELECTION COMMISSION, THIRUVANANTHAPURAM
Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER HEREIN DATED 18/6/19
Exhibit P3 TRUE COPY OF THE JUDGMENT IN W.P(C)
27844/2019 DATED 18.10.2019
Exhibit P4 TRUE COPY OF THE CHIEF AFFIDAVIT AND
DEPOSITION OF 2ND RESPONDENT
Exhibit P5 TRUE COPY OF THE CHIEF AFFIDAVIT AND
DEPOSITION OF THE PETITIONER
Exhibit P6 THE TRUE COPY OF THE DEPOSITION OF RW-3
IN OP 18/2019 BEFORE THE 1ST RESPONDENT
Exhibit P7 8. THE TRUE COPY OF THE ALLEGED WHIP
DATED 02.04.2019 ALLEGED TO HAVE BEEN
ISSUED BY THE 2ND RESPONDENT WHICH WAS
PRODUCED AS A-5 BEFORE 1ST RESPONDEN
Exhibit P8 THE TRUE COPY OF SECOND WHIP DATED
05.04.2019 ALLEGED TO HAVE BEEN ISSUED
BY 2ND RESPONDENT WHICH WAS PRODUCED AS
A-6
Exhibit P9 TRUE COPY OF THE ORDER DATED 17.01.2023
True copy
PS to Judge
