Kerala High Court
Jiji Saji vs State Of Kerala on 20 May, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
RP NO. 1333 OF 2023
AGAINST THE JUDGMENT DATED 01.08.2023 IN WP(C) NO.23603
OF 2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/PETITIONER
JIJI SAJI
AGED 49 YEARS
W/O. SAJI P GEORGE
PUTHENVILAYIL
VELLAPPARA P.O
PATHANAMTHITTA, PIN - 689691
BY ADVS.
V.PHILIP MATHEWS
ASHISH MATHEW JOHN
ABY SKARIA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
LOCAL SELF-GOVERNMENT DEPARTMENT SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695007
2 STATE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY
KERALA STATE ELECTION COMMISSION VIKAS BHAVAN
JANAHITHAM NEAR LEGISLATIVE ASSEMBLY
THIRUVANANTHAPURAM, PIN - 695033
3 PRAVEEN PLAVILAYIL
AGED 43 YEARS
S/O.VARADARAJAN, PLAVILAYIL VEEDU,
MANGARAM KONNI P.O PATHANAMTHITTA,
PIN - 689691
4 KONNI BLOCK PANCHAYAT
REPRESENTED BY ITS SECRETARY
KIZHAVALLOOR POST KERALA, PIN - 689691
RP No.1333/2023
:2:
BY ADVS.
SRI.DEEPU LAL MOHAN(STANDING COUNSEL) FOR R2
SMT.KAVERI MOHAN FOR R3
SMT.REKHA C.NAIR, SR.GOVERNMENT PLEADER
SRI.V.K.SUNIL (STANDING COUNSEL)FOR R4
MATHEW A KUZHALANADAN(K/1609/2001)
KURIAKOSE VARGHESE(D/2090/2003)
V.SHYAMOHAN(K/000824/2006)
SRADHAXNA MUDRIKA(K/815/2020)
BINCY JOB(K/001080/2017)
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RP No.1333/2023
:3:
N. NAGARESH, J.
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R.P. No.1333 of 2023
in
W.P.(C) No.23603 of 2023
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Dated this the 20th day of May, 2024
ORDER
~~~~~~
Petitioner in W.P.(C) No.23603/2023 has filed this
review petition alleging errors in the judgment dated
01.08.2023, on the face of the records.
2. The writ petition was filed by the petitioner
challenging Ext.P2 order of the 2 nd respondent-State Election
Commission disqualifying the petitioner from being a member
of the 4th respondent-Block Panchayat. The 3 rd respondent
had filed OP No.20/2021 before the State Election
Commission alleging that the petitioner contested and won
elections to the Konni Block Panchayat as official candidate
of Indian National Congress (INC). Violating the
whip/direction in writing issued by the President,
Pathanamthitta DCC, the petitioner voted in favour of the
Non Confident Motion moved by the LDF. The 3 rd
respondent alleged that the petitioner is therefore liable to be
disqualified under Section 3(1)(a) of the Kerala Local
Authorities (Prohibition of Defection) Act, 1999.
3. The petitioner resisted the OP. The petitioner
stated that she contested elections as an independent
candidate and that she is not a member of INC or any other
political party. The petitioner disputed the authority of the
President of DCC to issue any direction in writing / whip to
the petitioner. There was no valid whip and no such whip
was served, urged the petitioner. The 2 nd respondent-
Election Commission allowed the OP and declared that the
petitioner is disqualified under Section 3(1)(a).
4. The said Ext.P2 order was challenged by the
petitioner in W.P.(C) No.23603/2023. This Court found that
Ext.X1 document would show that the petitioner has given a
statutory declaration aligning with INC/UDF. This Court held
that there exists evidence that the petitioner did not accept
the whip and consequently the whip was served by affixture.
This Court held that the Election Commission's finding that
there is a valid whip and that the petitioner has violated the
whip, is justified. Ext.P2 order of the State Election
Commission was consequently upheld by this Court. The
writ petition was dismissed as per judgment dated
01.08.2023.
5. Aggrieved by the judgment in the writ petition, the
petitioner preferred W.A. No.1476/2023. A Division Bench of
this Court disposed of the writ appeal with liberty to the
petitioner-appellant to file a Review Petition before the Single
Judge raising all contentions and producing all documents
which are sought to be produced. The State Election
Commission was directed to produce the records with regard
to the Defection case. Thereupon, the petitioner has
preferred this Review Petition.
6. In the Review Petition, the petitioner contended
that she did not contest election as a candidate of Indian
National Congress. There was an understanding that the
petitioner will be entitled to act independently. The petitioner
urged that there was no service of valid whip in person or by
affixture. Names of witnesses are not mentioned in Ext.P1.
Details of Whatsapp message sending the whip, were not
mentioned. The petitioner further argued that the DCC
President is not authorised or empowered by law to issue
any direction in writing.
7. The petitioner further argued that this Court has
relied on Ext.X1 to hold that the petitioner had given a
statutory declaration aligning with INC/UDF. Ext.X1 series of
documents are from X1(a) to X1(m). There is no reference
to Ext.X1(m) in the judgment. The question whether DCC
President is authorised to issue whip, is not considered.
8. The petitioner further held that lack of clarity and
shortcomings in Kerala Local Authorities (Disqualification of
Defected Members) Rules, 2000 was not considered. The
judgment sought to be reviewed was rendered without proper
appreciation of the basic issues involved in the case.
9. Standing Counsel representing the 2 nd respondent
resisted the review petition. Relying on a Division Bench
judgment of this Court in Varghese V.V. and another v.
Kerala State Election Commission and another [2009 (3)
KLT 1], it was argued that the petitioner was elected to the
Block Panchayat as official candidate of INC and having
continued so in the Block Panchayat and voted in favour of
the No Confidence Motion moved by the rival political parties,
the petitioner has incurred the disqualification of voluntarily
giving up membership in the political party.
10. The Standing Counsel representing the 2 nd
respondent further argued that a judgmental error is not a
reviewable order, nor can it be termed an error on the face of
the record. Where an alleged error is far from self evident
and if it can be established, it has to be established by
lengthy and complicated arguments, such an error cannot be
cured by a Review Petition. There is no error apparent on
the face of the record. The Review Petition is therefore liable
to be dismissed.
11. I have heard the learned counsel for the review
petitioner, the learned Senior Government Pleader
representing the 1st respondent and respective Standing
Counsel representing respondents 2 and 4. I have also
heard the learned counsel appearing for the 3 rd respondent.
12. The petitioner states that she did not contest
election as a candidate of Indian National Congress. I have
perused the pleadings in the Review Petition and the writ
petition and the files relating to disqualification made
available by the Standing Counsel for the State Election
Commission. Annexure-A2 produced by the petitioner along
with the review petition contains Form-2 declaration made by
the petitioner on 21.12.2020. The signed declaration of the
petitioner shows that the petitioner has been elected as a
member, contesting elections as a candidate of INC. The
Register showing the party connection of members of
Panchayat, which also forms part of Annexure-A2, would
show that the petitioner has won the election in the symbol
"Hand" and the petitioner belongs to Indian National
Congress.
13. The Kerala Local Authorities Election Symbols
(Reservation and Allotment) Order, 2017 in Clause 4
provides that the candidates of a recognised National party
or a recognised State party shall be assigned the same
symbol reserved to it by the Election Commission of India.
Clause 8 provides that a candidate shall be deemed to be set
up by a political party only if the candidate has mentioned the
name of political party in the prescribed column in the
nomination paper and has chosen the symbol, if any,
reserved or allotted for that party in the nomination paper.
14. It is not in dispute that the petitioner has chosen
the symbol of a National party, the Indian National Congress.
The contention of the petitioner is that she has accepted the
symbol of INC on condition that she should be entitled to act
independently. When the petitioner has submitted signed
nomination and accepted the symbol of INC and contested
the elections and thereafter submitted a signed declaration in
Form-2 showing her as won in the election as a candidate of
INC, the petitioner cannot take a different stand thereafter.
The Election Commission has rightly found that the petitioner
belongs to Indian National Congress.
15. The further argument of the petitioner is that there
was no service of valid whip in person or by affixture. PW3
Babu George, who was DCC President at the relevant time,
has given oral evidence to the effect that he had issued the
direction in writing / whip. PW4 has proved Ext.A6 Whatsapp
message. PW5 has stated that he had gone to the
residence of the petitioner to serve the whip. The petitioner
was not available in the house. Thereafter, as directed by
the DCC President, notice was served by affixture. The oral
and documentary evidence available would show that the
whip was served on the petitioner by affixture.
16. The main argument of the petitioner is that the
DCC President, who has issued the whip, is not authorised
or empowered by law to issue any direction in writing.
Section 3 of the Kerala Local Authorities (Prohibition of
Defection) Act, 1999 deals with disqualification on ground of
defection. For disqualifying a candidate for acting contrary to
any direction / whip, such whip shall be 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.
17. Rule 4 of the Kerala Local Authorities
(Disqualification of Defected Members) Rules, 2000 provides
that such direction shall be given by a person authorised by
the political party to allot symbol. PW3, who was the DCC
President at the relevant time, has deposed before the State
Election Commission that he had allotted the symbol to the
candidates of Indian National Congress officially in his
capacity as DCC President. The evidence is therefore clear
that the said PW3 is authorised to issue directions in writing.
18. Rule 4 of the Rules, 2000 also provides that such
direction in writing shall be given on the letter head of the
political party duly signed and sealed. Ext.X3 would show
that the direction has been given in writing in a letter head
and the communication bears seal of the party. Ext.A3 also
is in letter head and bears signature of PW3 and seal of the
party. Therefore, the requirements of the Act and the Rules
stand satisfied.
19. Relying on the judgment of this Court in
Sivadasan v. Kerala State Election Commission [2020 (6)
KLT 484], the petitioner contends that lack of clarity and
shortcomings in the Kerala Local Authorities (Disqualification
of Defected Members) Rules, 2000 were not considered.
The judgment in Sivadasan (supra) dealt with a case where
one candidate contested as INC candidate and another
candidate was supported by the coalition consisting of INC.
The facts of the case are clearly distinguishable and the
judgment in Sivadasan (supra) is of no avail to the
petitioner.
20. The petitioner would further submit that the State
Election Commission has not considered the maintainability
of the OP in spite of the direction given by this Court in W.P.
(C) No.17901/2022. Going through Ext.P2 order of the State
Election Commission, I find that the Commission has
specifically noted the maintainability issue raised by the
petitioner in paragraph 3 (page 4) as also in page 14 of the
order. Ext.P2 final order has been passed after noting the
arguments of the petitioner in this regard. Therefore, it has
to be held that the State Election Commission has rejected
the contentions of the petitioner as regards non-
maintainability of the OP.
21. The petitioner is trying to make out an issue of
error in the judgment in writ petition producing additional
documents in the review petition. The Form-A declaration of
the petitioner would show that the petitioner has admitted
that she was a candidate of the political party INC. The
Register showing the party connection of members of
Panchayat, which is part of Annexure-A2, would also show
that the petitioner contested in the symbol "Hand" and she
belongs to INC/UDF. The documents produced by the
petitioner would only reinforce the order of the State Election
Commission. In the facts of the case, I do not find any error
in the judgment in the writ petition, warranting a review.
The review petition fails and it is hence dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/16.05.2024
PETITIONER'S ANNEXURES
ANNEXURE A1 TRUE COPY OF THE JUDGMENT DATED
ANNEXURE A2 TRUE COPY OF I.A.NO 2/2023 IN W.A NO
