Kerala High Court
Vasanthakumari vs The Kerala State Election Commission on 6 February, 2024
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WA NO. 45 OF 2024
AGAINST THE JUDGMENT IN WP(C) 3935/2023 OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
VASANTHAKUMARI
AGED 55 YEARS, MEMBER, WARD NO.4,
MANKARA GRAMA PANCHAYAT, W/O LATE ASOKAN,
MANGURUSSI P.O, KUNNUMMEL, MANKARA,
PALAKKAD DISTRICT, PIN - 678 613
BY ADVS.
THOMAS ABRAHAM
ASWIN.P.JOHN
MERCIAMMA MATHEW
PAUL BABY
R.ANANTHAPADMANABAN
RESPONDENTS/RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
VIKAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE
ASSEMBLY, THIRUVANANTHAPURAM, PIN - 695 033.
2 M.V.RAMESH
MEMBER WARD NO.1, MANKARA GRAMA PANCHAYAT,
S/O VELAYUDHAN, MOOKKATTUKUNNU HOUSE, KALLOOR P.O,
MANKARA, PALAKKAD DISTRICT, PIN - 678 613
BY ADVS.
DEEPU LAL MOHAN
SAIJO HASSAN
BENOJ C AUGUSTIN(K/189/2004.)
RAFEEK. V.K.(K/134/2003)
M.NOOHUKUNJU SAHIB(K/541/2009)
DEVI.R.SENS(K/000671/2016)
W.A.No.45 of 2024
2
SARITHA K.(K/001422/2021)
ABRAHAM J. KANIYAMPADY(K/3280/2023)
SANGEETH MOHAN(K/3399/2023)
PHILLIP VARGHESE THOMAS(K/003032/2023)
V.P.REJITHA(K/899/2001)
ASWIN K.R.(K/101/2021)
AMBADI DINESH L.K.(K/002835/2022)
NEEMA NEERACKAL(K/002823/2022)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.45 of 2024
3
JUDGMENT
Dated this the 6th day of February 2024
A.J. Desai, C.J.
The challenge in this appeal filed under section 5 of the
Kerala High Court Act, 1958, is the judgment dated 18.12.2023 in
W.P.(C)No.3935 of 2023 by which the learned single Judge, while
dismissing the petition filed by the appellant/writ petitioner,
confirmed an order dated 17.01.2023 passed by the Kerala State
Election Commission in O.P.No.10 of 2021 by which the appellant
was declared disqualified under the provisions of the Kerala
Local Authorities (Prohibition of Defection) Act, 1999.
2. Short facts that arise from the record are as under:
The appellant filed his candidature in Form No.2A of rule
6(2a) of the Kerala Panchayat Raj (Conduct of Election) Rules,
1995 as an independent candidate in the election to Ward No.4
of Mankara Grama Panchayat conducted in the year 2020. The
appellant won the election and as provided under sub-rule (2) of
Rule 3 of the Kerala Local Authorities (Disqualification of
Defected Members) Rules, 2000, the appellant was supposed to
fill up Form No.2 i.e., declaration showing the details about her
candidature. The appellant filled up the said Form No.2, declaring
herself as an independent candidate, who had contested the
election with the support of CPI(M) party. Thereafter, with the
support of the LDF coalition, which included CPI(M), she
contested the election and became the Vice President of the
Panchayat.
3. The conduct of the appellant lead to the filing of O.P.
No.10 of 2021 by the 2nd respondent, seeking a declaration that
the appellant stood disqualified by virtue of Sections 3 and 4 of
the Kerala Local Authorities (Prohibition of Defection) Act, 1999
(for short 'Act 1999'). The Election Commission, after considering
all the materials and perusing the deposition of several
witnesses, declared the appellant to be disqualified to continue
as Member and Vice President of the Grama Panchayat. The said
decision was challenged by the appellant by filing W.P.(C)
No.3935 of 2023 and the said writ petition came to be dismissed
by the impugned judgment. Hence, this appeal.
4. Learned counsel appearing for the appellant would
submit that the Election Commission as well as the learned single
Judge has committed an error in appreciating the facts of the
case. He would submit that after filing the nomination form as
an independent person, she had declared in the public notice
that she is contesting the election as an independent candidate
with the support of CPI(M) and had canvassed votes under that
notice and therefore, in the declaration form filed by the
appellant, the appellant declared that she had contested and
won the election with the support of the CPI(M).
5. By taking us through the deposition of witnesses, the
learned counsel would submit that it was decided in the party
committee meeting that the appellant will contest the election
to Ward No.4 as candidate of the CPI(M) and she was fielded as
an independent candidate since the name of another candidate
from CPI, a contestant of the LDF coalition was also declared. He
would further submit that, as the appellant has not joined any
party after election, her case is not covered under section 3(1)(c)
of the Act 1999 and, therefore, the Commission as well as the
learned single Judge has committed an error in holding that the
appellant had joined another political party. He, therefore,
would submit that appeal be allowed and the order passed by the
Election Commission and the judgment delivered by the learned
single Judge be quashed.
6. On the other hand, learned standing counsel appearing
for the Election Commission has produced the record of
proceedings in O.P.No.10 of 2021. By taking us through the
candidature form, he would submit that the appellant has
categorically stated therein that she is contesting the election as
an independent candidate. He would submit that this form was
submitted on 23.11.2020. However, the so-called notice
produced, by which the appellant declared that she is contesting
the election with the support of the CPI(M) Party, is dated
26.11.2020, viz; subsequent to the filing of her candidature. By
taking us through the declaration form, he would submit that
after submitting the nomination as an independent candidate,
the appellant contested the election with the support of CPI(M),
which would bring the appellant's case within the purview of
section 3(1)(c) of the Act 1999. He would submit that the
question whether a person has joined another party or not can
be decided by his/her conduct, and in the present case, the
appellant had joined a political party after contesting the
election as an independent candidate, which is a ground for
disqualification. In support of his submission, learned counsel
relied on the decision in Jagjit Singh v. State of Haryana and
Others reported in (2006) 11 SCC 1 of the Hon'ble Apex Court.
He would further submit that a similar issue was considered by
the Division Bench of this court in the case of Sheeba George v.
State Election Commission of Kerala reported in 2022 KHC 763.
He, therefore, would submit that the appeal be dismissed.
7. We heard learned Advocates appearing for the
respective parties and perused the record of proceedings
produced by the Election Commission.
8. In the candidature form, which is required to be filed in
Form No.2A, the appellant has categorically stated that she is
contesting the election as an independent candidate without the
support of any party. The said form is filled up on 23.11.2020.
After being elected as a Member of Mankara Grama Panchayat,
the appellant had submitted a declaration form, wherein she
categorically stated that she had contested as an independent
candidate with the support of CPI(M) and thereafter, with the
help of the Members of LDF, she was elected as the Vice
President. This conduct of the appellant is sufficient to establish
that the appellant had acted contrary to the mandatory
requirement contained in rule 3(2)(c) of the Rules 2000.
9. In the case of Jagjit Singh v. State of Haryana and
Others (supra), the Hon'ble Apex Court held as under:
"50. It was also contended that para 2(2) of the Tenth
Schedule deserves to be strictly construed. The submission
is that the word 'join' in para 2(2) deserves a strict
interpretation in view of serious consequences of
disqualification flowing therefrom on an order that may be
made by the Speaker. Para 2(2) of the Tenth Schedule reads
as under:
"2. (2). An elected member of a House who has
been elected as such otherwise than as a candidate
set up by any political party shall be disqualified for
being a member of the House if he joins any political
party after such election."
51. As noted earlier, the object of the defection law
has to be borne in mind. The question to be considered is
whether a Member formally joining a political party is the
requirement so as to earn disqualification or the factum of
joining can be inferred from facts and conduct of a Member,
without a Member formally joining a political party
inasmuch as not filling form required to be filled by a
member of the political party under the rules and
regulations of that party or payment of any prescribed fee.
The respondents pleaded for a liberal construction and
submitted that inference from conduct was sufficient to
establish that an independent Member has joined a political
party. These are two extreme views on the issue.
52. We are of the view that to determine whether an
independent Member has joined a political party the test is
not whether he has fulfilled the formalities for joining a
political party. The test is whether he has given up his
independent character on which he was elected by the
electorate. A mere expression of outside support would not
lead to an implication of a Member joining a political party.
At the same time, non-fulfilment of formalities with a view
to defeat the intent of para 2(2) is also of no consequence.
The question of fact that a Member has given up his
independent character and joined, for all intent and
purposes, a political party though not formally so as to incur
disqualification provided in para 2(2) is to be determined on
appreciation of the material on record."
10. Apart from the above decision, the case is squarely
covered by the judgment in Sheeba George (supra) delivered by
this court also. The reason for the appellant contesting the
election as an independent candidate can only be discarded in
view of the settled legal position.
Hence, we do not find any reason to interfere with the order
passed by the Election Commission and the judgment of the
learned single Judge. The appeal is accordingly dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
A.J. Desai
Chief Justice
Sd/-
V.G. Arun
Judge
vpv
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE ORDER
NO.B3/30/2023-SEC DATED 29/12/2023
APPOINTING THE SPECIAL TAHSILDAR,
KINFRA, PALAKKAD AS THE RETURNING
OFFICER FOR THE ELECTION TO THE VICE
PRESIDENT OF MANKARA GRAMA PANCHAYAT
ALONG WITH ITS ENGLISH TRANSLATION
TRANSLATION OF
TRANSLATION OF EXHIBIT P2
EXHIBIT P2
TYPED COPY OF
TYPED COPY OF EXHIBIT P3
EXHIBIT P3
TRANSLATION OF
TRANSLATION OF EXHIBIT P4
EXHIBIT P4
