Kerala High Court
Jiji Saji vs State Of Kerala on 1 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
WP(C) NO. 23603 OF 2023
AGAINST THE ORDER IN OP NO.20/2021 OF KERALA STATE
ELECTION COMMISSION, THIRUVANANTHAPURAM
PETITIONER:
JIJI SAJI
AGED 49 YEARS
W/O SAJI P GEORGE, PUTHENVILAYIL,
VELLAPPARA P.O., PATHANAMTHITTA,
PIN - 689691
BY ADVS.
P.K.VARGHESE
M.T.SAMEER
DHANESH V.MADHAVAN
R.ROHITH
K.R.ARUN KRISHNAN
JERRY MATHEW
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695007
2 STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,
KERALA STATE ELECTION COMMISSION
VIKHAS BHAVAN, JANAHITHAM,
NEAR LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM, PIN - 695033
W.P.(C) No.23603/2023
:2:
3 PRAVEEN PLAVILAYIL
S/O VARADARAJAN,
PLAVILAYIL VEEDU, MANGARAM, KONNI P.O.,
PATHANAMTHITTA, PIN - 689691
4 KONNI BLOCK PANCHAYAT KIZHAVALLOOR,
KERALA, PIN - 689691
REPRESENTED ITS SECRETARY
BY ADVS.
SRI.DEEPU LAL MOHAN, STANDING COUNSEL, STATE
ELECTION COMMISSION
SRI.V.K. SUNIL, STANDING COUNSEL, KONNI GRAMA
PANCHAYAT
SMT.DEEPA.N., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.23603/2023
:3:
N. NAGARESH, J.
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W.P.(C) No.23603 of 2023
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Dated this the 1st day of August, 2023
JUDGMENT
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The petitioner is before this Court seeking to set
aside Ext.P2 disqualification order dated 04.07.2023 passed
by the 2nd respondent-State Election Commission.
2. The 3rd respondent in the writ petition is the
elected Member of Ward No.4 of the Konni Block Panchayat
in the general election held to the Local Self Government
Institutions during December, 2020. In the same election,
the petitioner was elected as Member from Ward No.13.
3. The 3rd respondent filed OP No.20/2021 before the
State Election Commission alleging that he and the petitioner
contested and won the elections as official candidates of
Indian National Congress (INC). After the election, the 3 rd
W.P.(C) No.23603/2023
respondent and the petitioner gave sworn declarations
disclosing their association with INC. The 3 rd respondent
alleged that the United Democratic Front (UDF) of which INC
is a constituent proposed M.V. Ambili as the President of the
Panchayat.
4. The Left Democratic Front (LDF) Members moved
a No Confidence Motion against the President of Block
Panchayat which was tabled for discussion on 28.07.2021.
The President, Pathanamthitta District Congress Committee
had issued a direction in writing / whip dated 26.07.2021
directing the petitioner and the 3rd respondent to cast vote
against the No Confidence Motion. On 28.07.2021, in the
meeting called for discussing No Confidence Motion, the
petitioner voted in favour of the No Confidence Motion
moved by the LDF. Consequently, official candidate of
INC/UDF was unseated from the post of President, it was
alleged.
5. The petitioner resisted the OP. The petitioner
stated that she contested an independent candidate to the
W.P.(C) No.23603/2023
Block Panchayat and she is not a member of INC or any
other political party. The petitioner contested in party symbol
on condition that she will be entitled to adopt independent
stands and policies. The petitioner stated that the No
Confidence Motion against M.V. Ambili was moved with the
consensus of all Members of the Panchayat. The petitioner
disputed the authority of the President of District Congress
Committee to issue any direction in writing / whip to the
petitioner. No whip was served on the petitioner. There is
no valid whip or direction in writing binding the petitioner.
6. The 2nd respondent-Election Commission allowed
the OP and declared that the petitioner is disqualified under
Section 3(1)(a) of the Kerala Local Authorities (Prohibition of
Defection) Act as per Ext.P2 order dated 04.07.2023. Ext.P2
order is illegal and arbitrary, contends the petitioner.
7. The petitioner states that the 2 nd respondent ought
to have found that no whip was served on the petitioner.
Rule 4(1) and Rule 4(2) were not satisfied to constitute an
effective whip. Rule 4 specifically provides that while issuing
W.P.(C) No.23603/2023
a direction under sub-rule (1) directly, the person who gives it
shall obtain a receipt from the member and while sending it
by registered post, it shall be done along with
acknowledgment due. While effecting affixure, it shall be
done in the presence of two witnesses. A copy of the whip
shall be furnished to the Secretary.
8. Before concluding that the petitioner has
constructive knowledge about the directions in writing/whip,
the Election Commission ought to have considered that no
evidence or material was placed to establish that the
decision was taken in the meeting of the political party. The
Commission should not have relied exclusively on oral
evidence in the matter of affixture of whip. The evidence
adduced by PW4, PW5, PW6 and RW5 were mutually
contradictory.
9. It was contended on behalf of the petitioner that
Rule 3(2) was not complied with. Unless Rule 3(2) is
complied with, there is no question of disqualification under
Rule 3(1)(a). There is no clinching evidence to conclude that
W.P.(C) No.23603/2023
Rule 3(2) is complied with. The Secretary who was in charge
during the relevant time was not examined. The Secretary
who was examined had no personal knowledge in the matter.
10. On behalf of the petitioner, it is further urged that
going by Ext.X4 Distribution register, the passage of No
Confidence Motion is recorded at serial No.1468, on
28.07.2021. The whip therefore necessarily ought to have
been issued before 28.07.2021. However, in Ext.X4
Distribution Register, the whip was recorded at serial
No.1472 which is subsequent to the passing of No
Confidence Motion. This itself would show that the
documents were manipulated. Since the issuance of whip is
not proved conclusively, there is no question of
disqualification.
11. The petitioner relied on the judgment of this Court
in Jomon K.L. v. Kerala State Election Commission,
Thiruvananthapuram [2021 KHC 3056] and argued that in
the absence of any finding that the whip was served on the
Secretary of the Local Body, there cannot be a valid service
W.P.(C) No.23603/2023
of whip, and if there is no valid service of whip, a member
cannot be disqualified with reference to the second limb of
Section 3(1)(a) of the Act, 1999. Ext.P2 order of
disqualification passed by the Election Commission is
therefore liable to be set aside. The petitioner further pointed
out that it is not based on the allegation that the petitioner
has joined LDF that he has been disqualified. It is for the
alleged violation of whip that the petitioner is disqualified.
Since there is no proof of a valid whip, the disqualification of
the petitioner cannot be sustained in the eye of law.
12. The Standing Counsel for the Kerala State
Election Commission entered appearance and resisted the
writ petition. The Standing Counsel pointed out that the
Original Petition was filed by the 3rd respondent raising both
grounds, for disqualification, under Section 3(1)(a) and 3(1)
(b). The specific allegation of the 3 rd respondent was that a
direction in writing / whip was served on the petitioner
through the Secretary of District Congress Committee, but on
knowing about the contents of the whip, the petitioner
W.P.(C) No.23603/2023
purposefully left her house and refused to accept the whip.
Hence, the whip was affixed at the petitioner's residence in
the presence of witnesses. The 3rd respondent alleged that
the petitioner has withdrawn from the INC and also defied the
valid direction given by the District President of the INC.
13. The Standing Counsel further pointed out that
Ext.A1 statutory declaration given by the members were
produced. The Secretary's register was also marked as
Ext.A2. The whip and photographs showing affixture of whip,
along with mahazar were produced and marked as Exts.A3
to A5. Ext.A7 copy of acknowledgment of whip served on the
Secretary of Block Panchayat was also there before the
Election Commission. Ext.A8 minutes proved that the
petitioner has voted against the President of her own party.
Ext.A9 established that the petitioner contested as President
against the presidential candidate of her own political party.
14. The Standing Counsel further pointed out that
though the State Election Commission confined its final order
on the issue of violation of whip, the issue of defection was
W.P.(C) No.23603/2023
also considered by the State Election Commission. Relying
on the judgment in Varghese V.V. and another v. Kerala
State Election Commission and another [2009 (3) KLT 1],
the Standing Counsel argued that in the absence of a
specific whip for conscious vote, an elected member, under
law, is entitled and liable to cast only a conscious vote, being
aware of the consequences of his decision in terms of
Section 3 of the Kerala Local Authorities (Prohibition of
Defection) Act, 1999 on disqualification on the ground of
defection on account of voluntary giving up membership from
the political party.
15. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the 2 nd
respondent-Election Commission. I have also heard the
Senior Government Pleader representing the 1 st respondent.
16. The issue arising for consideration is whether
Ext.P2 order of the 2nd respondent-Election Commission
disqualifying the petitioner under Section 3(1)(a) of the
Kerala Local Authorities (Prohibition of Defection) Act, 1999
W.P.(C) No.23603/2023
is legal and justifiable. Ext.P1 petition for declaration of
disqualification filed by the 3rd respondent under Section 3
and Section 4(1) of the Act, 1999 would indicate that the 3 rd
respondent had sought for disqualification of the petitioner
both under Section 3(1)(a) and 3(1)(b). In Ext.P1 petition,
the 3rd respondent alleged that the petitioner violated the
valid whip served on the petitioner by voting in favour of the
No Confidence Motion moved by the LDF. Ext.P1 further
urged that the petitioner has moved against the INC
candidate and thereby voluntarily gave up his membership of
INC.
17. The prime defence of the petitioner is that there is
no valid whip served on the petitioner so as to warrant
disqualification. Ext.X1 document would establish that the
petitioner has given a statutory declaration aligning with
INC/UDF. Ext.X3 includes the copy of the whip served on
the Secretary. Ext.A3 document is the copy of whip.
18. It has come out in evidence that the person who
was entrusted to serve the whip informed the Secretary over
W.P.(C) No.23603/2023
phone about the non-acceptance of whip. Therefore, the
whip was directed to be served by affixture. The DCC
General Secretary and two Block Panchayat Members went
for serving whip by affixing. All of them have signed Ext.A5
document. PW4 who is the DCC General Secretary of
Pathanamthitta identified the signature appeared in Ext.P5
that the signature of DCC President Babu George.
19. PW4 further stated that the service of whip to the
respondent was entrusted to him by the DCC President and
that he has carried out the direction along with Block
Panchayat Members K.R. Pramod and Sreekala Nair.
20. PW5 also deposed that the signature seen in
Ext.A5 is his name. He also stated that the DCC President
has authorised him to serve the whip. PW6 also stated that
she has signed Ext.A5 as witness No.2. In the
circumstances, it cannot be said that Rule 4(1) of the Kerala
Local Authorities (Disqualification of Defected Members)
Rules, 2000 is violated.
W.P.(C) No.23603/2023
21. Taking into consideration the oral and
documentary evidence adduced, the Election Commission
concluded that the petitioner was elected to the Konni Block
Panchayat as a candidate of INC in its symbol "Hand". In the
No Confidence Motion moved on 28.07.2021, the petitioner
voted in favour of the No Confidence Motion in defiance of
the whip issued by the DCC President, Pathanamthitta. The
said act of the petitioner attracted the first limb of Section
3(1)(a).
22. In the facts and circumstances of the case, the
Election Commission rightly held that there is a valid whip
and that the petitioner has violated the whip. Such action of
disloyalty would amount to voluntarily giving up membership
of the particular political party. The finding of the Election
Commission that the petitioner had constructive knowledge
of the direction in writing/whip and that the direction in
writing/whip was issued following the procedure as mandated
under the Rules is therefore liable to be upheld.
W.P.(C) No.23603/2023
In the facts and circumstances of the case, I find
no reason to interfere with Ext.P2 order passed by the 2 nd
respondent-Election Commission. The writ petition therefore
fails and it is consequently dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/01.08.2023
W.P.(C) No.23603/2023
APPENDIX OF WP(C) 23603/2023
PETITIONER'S EXHIBITS
Exhibit-P1 A TRUE COPY OF THE ORIGINAL PETITION
NO.20/2021 PREFERRED BY 3RD RESPONDENT
BEFORE THE STATE ELECTION COMMISSION
DATED 03.08.2021
Exhibit-P2 A TRUE COPY OF THE ORDER OF THE STATE
ELECTION COMMISSION IN OP NO.20/2021
DATED 04.07.2023
Exhibit-P3 A TRUE COPY OF THE NOTIFICATION
NO.B2/172/2023-SEC DATED 21.07.2023
ISSUED BY THE 2ND RESPONDENT.
