Kerala High Court
Mr. Abdul Kareem vs The Kerala State Election Commission on 3 January, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(C) NO. 14084 OF 2023
PETITIONER:
MR. ABDUL KAREEM
AGED 51 YEARS
MALEPARAMBIL HOUSE,
KUMBANKALLU, THODUPUZHA EAST P.O.,
IDUKKI-685585.
BY ADVS.
SRI.C.R.SYAMKUMAR
SRI.RENOY VINCENT
SMT.HELEN P.A.
SRI.ATHUL ROY
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION
JANAHITHAM, TC 27/6(2),
VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033
2 SMT. JESSY,
W/O JOHNY,
NEDUMKALLEL HOUSE,
MUTHALAKODAM P.O., CHERUTHOTTILKARA,
THODUPUZHA, IDUKKI- PIN - 685605
3 THODUPUZHA MUNICIPALITY
THODUPUZHA P.O., IDUKKI- 685554
REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI.DEEPU LAL MOHAN, SC
SRI.THAJUDEEN
SRI.IRFAN BASHEER
W.P.(C) No.14084/23 -:2:-
SRI.P.DEEPAK
ADV.NAZRIN BANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.12.2023, THE COURT ON 03.01.2024 DELIVERED THE
FOLLOWING:
W.P.(C) No.14084/23 -:3:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.14084 of 2023
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Dated this the 3rd day of January, 2024
JUDGMENT
The writ petitioner challenges the order of the Kerala State Election
Commission (for short 'the Election Commission') dismissing the
application to declare the second respondent as having defected and
became disqualified under the provisions of the Kerala Local Authorities
Prohibition of Defection Act, 1999 ( for short 'the Act').
2. The writ petitioner and the second respondent are the elected
members from Ward No.18 and Ward No.9, respectively of Thodupuzha
Municipality. The elections were held on 08.12.2020. The second
respondent contested the election as an independent candidate
sponsored by the IUML and was a part of the UDF coalition. According to
the petitioner, the second respondent had, after getting elected as an
independent candidate supported by IUML which was a part of the UDF
coalition, voted in favour of the LDF candidate in the elections to the post
of Chairman. It was further alleged that the second respondent had even
contested as the candidate of the LDF for the post of vice-chairperson and
emerged successful, thereby expressing her disloyalty to the coalition
amounting to defection and thereby becoming disqualified.
3. The second respondent, in her objections, stated that she was
elected as the Counsellor of the Municipality without the support of any
political party and that she was an independent candidate. It was pointed
out that she was not the candidate of the IUML or the coalition of UDF, and
her symbol was an 'umbrella'. According to the second respondent,
though she had signed Form No.2 declaration, the entries made therein
were not in her handwriting, and she had no knowledge about the register
prepared by the Secretary of the Municipality. It was further pointed out
that the alleged whip dated 27.12.2020 was never served on her, and
though she contested as vice-chairperson in the elections on 28.12.2020,
she had never sought the support of the UDF or the LDF. As a purely
independent member of the Municipality, she had every right to take an
independent decision.
4. The third respondent herein, who was arrayed as the second
respondent before the Election Commission, filed a statement wherein it
was averred that the second respondent had submitted the declaration in
Form No.2 as per rule 3(2) of the Kerala Local Authorities Disqualification
of Defected Members Rules, 2000 ( for short 'the Rules') and the details
were recorded in a register based upon the declaration submitted by the
elected Counsellors. It was also stated that the elections to the post of
Chairman and Vice-Chairman of the Municipality were held on 28.12.2020.
5. In order to prove the case of the respective parties, petitioner
examined himself as PW1 and marked Ext.A1 to Ext.A13, while the
second respondent examined herself as RW1.
6. After analysing the evidence, the Election Commission concluded
that the copy of the whips produced as Ext.A8 and Ext.A9 did not bear the
requisite seal of the parties in tune with the provisions of Rules 4(1)(i) and
also that the service of the whip could not be proved, apart from the same
having not been furnished to the Secretary of the Municipality, as required
under Rule 4(2) of the Rules. The Election Commission also held that
there was no material to prove that the second respondent had withdrawn
from the coalition and for those reasons, dismissed the petition.
7. Sri. C.R.Shyamkumar, the learned counsel for the petitioner,
contended that the Election Commission erred in appreciating the scope of
the petition for disqualification since the finding of withdrawal from the
coalition was perverse and contrary to facts and even law. Reliance was
placed on the pleadings in the original petition before the Commission and
the various exhibits produced, including Ext. A1 to Ext.A7. According to
the learned counsel, even if the existence of the service of a valid whip is
not proved, the Election Commission ought to have held that the second
respondent had withdrawn from the coalition by her conduct in voting for
the LDF in the election to the post of chairman and in standing as a
candidate to the post of Vice-Chairperson.
8. Sri. P. Deepak, the learned counsel for the second respondent,
contended that the scope of interference by this Court under Article 226 of
the Constitution of India is limited. According to the learned counsel, only
when there is an error apparent on the face of the record in the impugned
order can this Court interfere with the findings rendered by the Tribunal. In
support of his contention, it was submitted that under section 4(2) of the
Act, a finality is attached to the orders of the Tribunal. It was argued that
once factual aspects are found by the Tribunal, this Court, under Article
226, should seldom interfere. The learned counsel referred to the
decisions in G. Veerappa Pillai v. Raman and Raman Limited,
Kumbakonam, Tanjore District and Others (AIR 1952 SC 192), T.C
Basappa v. T. Nagappa and Another (AIR 1954 SC 440), Nagendra
Nath Bora and Another v. The Commissioner of Hill's Division and
Appeals, Assam and Others (AIR 1958 SC 398), Kihoto Hollohan v.
Zachillhu and Others (1992 Supp. (2) SCC 651) and other decisions in
support of his contentions.
9. On an appreciation of the contentions of the respective counsel,
this Court notices that the question before the Election Commission was
whether the second respondent herein had become disqualified by
withdrawing from the coalition despite being an independent member and
also due to violation of the directions issued in writing. Since the learned
counsel for the petitioner confined his submissions to defection due to the
alleged withdrawal from the coalition, the consideration is confined to the
said contention alone.
10. Ext.A1 is the declaration submitted by the second respondent
under Form No.2A of rule 6(2)(a) of the rules affirming that she was
contesting the election to the Municipality as an independent candidate
sponsored by the IUML. Ext.A2 is the nomination paper submitted by the
second respondent, wherein also it was stated that she was contesting as
an independent candidate sponsored by the IUML. Ext.A6 is the
declaration submitted by the second respondent under Form No.2 stating
that she is part of the UDF and that the IUML is part of the said coalition.
Ext.A3 is the poster allegedly published by the second respondent stating
that she is an independent candidate of the UDF, while Ext.A4 is an
election manifesto allegedly made by the second respondent mentioning
that she is an independent candidate of the UDF. Since Ext.A3 and Ext.A4
have been denied by the second respondent during her evidence, those
two documents are not referred to.
11. Apart from the above, in Ext.A7, the second respondent's name
is shown as serial No.9, and it is mentioned that she is part of the IUML
and an independent candidate. It is, therefore, evident that the second
respondent was an independent candidate who contested with the support
of IUML, which was part of the UDF. The finding of the Election
Commission that there is no indication in the campaign materials marked
as Ext.A3, Ext.A4 & Ext.A5 that the second respondent contested as an
independent candidate of the IUML party by itself is not sufficient to
conclude that she was not an independent candidate of IUML belonging to
the UDF coalition. Crucial documents like Ext.A1, Ext.A2 and Ext.A7 had
been completely ignored and not even referred to by the Election
Commission while appreciating the evidence.
12. In this context, it is relevant to note that RW1 had, during her
cross-examination, deposed that Ext.A2 is the nomination paper based on
which she had contested the election. In Ext.A2, she had specifically
stated that she was an independent candidate of the IUML. If she had
contested the elections based on Ext.A2, she could not have gone back
upon it. The posters and other notices by themselves cannot indicate the
nature of candidature unless there is sufficient proof regarding its
reliability. The Tribunal thus failed to appreciate the evidence available
before it and instead placed reliance only on Ext.A3, Ext.A4 and Ext.A5.
13. Voluntarily giving up membership and acting in violation of the
whip are different facets of disqualification due to defection. Reference in
this connection to the decision in Chenthamara K. and Others v. Kerala
State Election Commission, Tvm and Others (2015 KHC 7086) is
relevant. Hence, even if a violation of the whip is not proved, the petitioner
can still prove voluntary giving up of membership of the political party or
the coalition to which he belongs.
14. Under section 3(1)(b) of the Act, an independent member can
incur disqualification if he either withdraws from the coalition, joins any
political party or any other coalition or acts in violation of the whip. Section
3(1)(b) of the Act is extracted hereunder:
"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) xxxx xxxx xxxx xxxx
(b) if an independent member belonging to any coalition withdraws
from such coalition or joins any political party or any other coalition, or
if such a member, contrary to any direction in writing issued by a
person or authority authorised by the coalition in its behalf in the
manner prescribed, votes or abstains from voting,--
xxxx xxxx xxxx
(c) xxxx xxxx xxxx xxxx
he shall be disqualified for being a member of that local authority."
15. An independent member in a coalition can be disqualified if he
withdraws from the coalition. Section 3(1)(b) of the Act states that if an
independent member belonging to any coalition withdraws from such
coalition or joins any political party or any other coalition, he becomes
disqualified. An independent member but part of a coalition, withdrawing
from the coalition is similar to voluntarily giving up membership in a
political party. The former applies to independent members, while the
latter applies to members of a political party. Therefore, if there is
evidence to indicate that an independent member, but part of a coalition,
has withdrawn from such a coalition, that is sufficient to invite the vice of
defection. Joining another party or coalition is not even necessary to prove
disqualification under section 3(1)(b) of the Act, though they are two of the
three situations under which an independent member can incur
disqualification.
16. In the instant case, it is evident that the second respondent had
stood as a vice-presidential candidate supported by the LDF coalition. The
person who nominated the second respondent for the elections to the post
of vice-president is a member of the LDF coalition. Sri Mohammed Afsal,
who nominated the second respondent as the vice-presidential candidate,
is shown as a member of the CPI and part of the LDF coalition in Ext.A7.
The said Mohammed Afsal is not shown as a member of the UDF coalition
in Ext.A6 as well. It is evident that the second respondent was nominated
as a vice-presidential candidate by the LDF coalition.
17. In this context, reference to the decision in Rama Bhaskaran v.
Kerala State Election Commission and Ors. (2018 (2) KHC 126), is
relevant. In the said decision, it was held that in contesting as a candidate
for the post of president of the Panchayat after being sponsored by the
rival coalition and emerging successful in the said election on the strength
of votes polled by the said rival coalition, the candidate stands disqualified
on the ground that he had voluntarily given up the membership of his own
political party. Further, the observations in the decision in Jessie Raju v.
Communist Party of India (2017 (4) KLT 399) are also relevant. In the
said decision, it was observed that "The disqualification alleged herein is
admitted insofar as the petitioner, who was an independent Member belonging
to the LDF coalition during the term of the Committee, submitted a nomination
as a candidate of the INC with UDF coalition. The petitioner hence withdrew
from the coalition in whose platform she was elected and was continuing as
Member and joined another political party in a different coalition. This clearly
invites a disqualification and there can be no dispute on the said count."
18. As mentioned earlier, withdrawal from the coalition is similar to
voluntarily giving up membership of a political party, and hence, it is
evident that the second respondent had withdrawn as an independent
member of the UDF coalition by standing as a candidate in the vice-
presidential election nominated by the LDF coalition and became
successful with the support of the said coalition. On a perusal of the
documents marked in evidence and the evidence adduced, the only
conclusion that is possible is that the second respondent had withdrawn
from the coalition of which he was an independent member.
19. In view of the above conclusion, the Election Commission has,
by not declaring the second respondent as disqualified, refused to
exercise the jurisdiction vested in it. Further, there is a serious error in the
impugned order, which has resulted in manifest injustice, especially
viewed in the backdrop of the statute in question. Reference to the
Constitution Bench decision in G. Veerappa Pillai's case (supra) is
appropriate in this context.
20. The question then arises is whether this Court, under Article
226, should remand the matter or enter a finding regarding the
disqualification of the second respondent. In the decision in Jancy
Chandy v. Jose Puthenkala (2006 (4) KLT 116), a Division Bench of this
Court had observed that "It will be too technical an argument that this court
under Art.226 does not have the jurisdiction while exercising the power of
judicial review to pass an order which the Commission ought to have passed in
the facts and circumstances of the case. This is all the more so since any delay
in the matter of declaration would be to the detriment of democracy. Since the
appellants have betrayed the confidence of the voters they should not be
allowed to cling on to their office. It has also to be noted that a disqualified
member under law, is disabled from contesting as a candidate in an election to
any local authority for six years from the date of declaration of disqualification by
the Election Commission................. The jurisdiction under Art.226 of the
Constitution of India cannot be cribbed and cabined by technical pleas. It is
meant to reach wherever injustice is found. In order to prevent injustice, the writ
court should in appropriate cases pass orders or give directions which the
concerned statutory authorities could have and should have passed. "
21. A similar situation as in the above referred case arises in the
instant case as well. The cause of action for alleged disqualification arose
on 28-12-2020, and the election petition was filed on 20-01-2021. Almost
three years have elapsed from the date of cause of action. This Court has
already found that the second respondent has defected by her conduct.
What remains is only a formality in declaring the disqualification. For that
purpose, if the case is remanded, it can pave the way for further delay.
which will defeat the purpose of the very Statute itself. Thus, when the
conclusions of a statutory Tribunal are founded on reasons which are
wrong in law and plainly inconsistent with the statute, the conclusions can
be corrected under Article 226.
22. In the result, the order of the Kerala State Election Commission
dated 02-03-2023 in O.P No.13/2021 to the extent it held the second
respondent herein as not disqualified for having withdrawn from the
coalition is set aside. The second respondent herein (first respondent in
O.P No.13/2021) is declared as disqualified from being a member of the
Thodupuzha Municipality for having withdrawn from the coalition of which
she was an independent member as contemplated in section 3(1)(b) of the
Act.
The writ petition is allowed in part.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 14084/2023
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE NOMINATION PAPER
SUBMITTED BY THE 2ND RESPONDENT IN
PERSON TO THE RETURNING OFFICER IN FORM
NO.2 DATED 18-11-2020, OBTAINED UNDER
THE RIGHT TO INFORMATION ACT
EXHIBIT P2 THE TRUE COPY OF THE NOMINATION PAPER
SUBMITTED BY THE 2ND RESPONDENT IN
PERSON TO THE RETURNING OFFICER IN FORM
NO.2 DATED 18-11-2020, OBTAINED UNDER
THE RIGHT TO INFORMATION ACT
EXHIBIT P3 THE TRUE COPY OF THE DECLARATION MADE BY
THE 2ND RESPONDENT IN FORM NO.2 DATED
21-12-2020, AS OBTAINED UNDER THE RIGHT
TO INFORMATION ACT,
EXHIBIT P4 THE TRUE COPY OF THE REGISTER IN FORM
NO.1 AS MANDATED UNDER RULE 3 (1) OF THE
KERALA LOCAL AUTHORITIES
(DISQUALIFICATION OF DEFECTED MEMBERS)
RULES, 2000 AS OBTAINED UNDER THE RIGHT
TO INFORMATION ACT
EXHIBIT P5 THE TRUE COPY OF THE PETITION FILED BY
THE PETITIONER AS O.P. 13 OF 2021 BEFORE
THE 1ST RESPONDENT DATED 20-01-2021,
WITHOUT THE EXHIBITS
EXHIBIT P6 THE TRUE COPY OF THE OBJECTIONS FILED BY
THE 2ND RESPONDENT DATED 12-10-2021
EXHIBIT P7 THE TRUE COPY OF THE ORDER PASSED BY THE
1ST RESPONDENT DATED 02-03-2023
