Kerala High Court
Leelamma Sabu vs State Of Kerala on 5 September, 2024
2024:KER:67716
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
WP(C) NO. 11915 OF 2024
PETITIONER:
LEELAMMA SABU,
AGED 52 YEARS, W/O SABU KAINADATH,
KAINADATHU HOUSE, CHUZHANA, VALAKUZHY P.O,
VENNIKULAM, PATHANAMTHITTA ,(MEMBER-WARD NO.5 OF
EZHUMATTOR GRAMA PANCHAYATH), PIN - 689 586
BY ADVS.
UNNI. K.K. (EZHUMATTOOR)
PRAFIN JOSEPH ZACHARIA
RESPONDENTS:
STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
1 LOCAL SELF GOVERNMENT DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001
EZHUMATTOOR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, THELLIYYOOR .P.O,
2
PATHANAMTHITTA DISTRICT, PIN - 689 544
KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE STATE
3
ELECTION COMMISSION, THIRUVANANTHAPURAM, PIN - 695 001
R. KRISHNAKUMAR,
S/O M N RAVEENDRAN NAIR,
4 MULLAPPONE HOUSE, EZHUMATTOOR, PATHANAMTHITTA DISTRICT
(MEMBER WARD NO.14 OF EZHUMATTOOR GRAMA PANCHAYATH),
PIN - 689 586
WP(C) NO.11915 OF 2024
2
2024:KER:67716
BY ADVS.
VINOD KUMAR P
SRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION,
KERALA
LALGI P THOMAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.11915 OF 2024
3
2024:KER:67716
MOHAMMED NIAS C.P., J.
---------------------------------------
W.P.(C) No.11915 of 2024
-----------------------------------------------------------
Dated this the 5th day of September, 2024
JUDGMENT
The petitioner is an elected member from Ward No.5 of
Ezhumattoor Grama Panchayat and a candidate of the Indian
National Congress (INC). She challenges Ext.P3 order
passed by the Kerala State Election Commission,
Thiruvananthapuram, allowing O.P. No.28/2021 filed by the
fourth respondent herein.
2. The Original Petition alleged that the petitioner and
the respondent were elected members representing Ward
Nos.14 and 5 of the Ezhumattoor Grama Panchayat
respectively in the General Election held in 2020. They
contested and won the election as the official candidates of
INC under the official symbol 'Hand'. After the election, they
had given sworn declarations before the Secretary showing
WP(C) NO.11915 OF 2024
2024:KER:67716
their political allegiance to INC. Further, they had also given
declarations to the Secretary under Section 3(2) of the Kerala
Local Authorities (Prohibition of Defection) Act. There were 14
Wards in the Panchayat and after the election, there were four
members of INC, one Kerala Congress (Joseph), four members
of CPI(M), one Independent with CPM support, one
Independent with CPI support, one member of Kerala
Congress (M), one BJP and one Independent with BJP support.
For the two vacancies to the Health and Education Standing
Committee, elections were scheduled on 27.09.2021. On that
day, one member had submitted a nomination and she was
elected and the other vacancy remained unfilled. The
election to the unfilled vacancy was slated to be held on
01.10.2021. The parliamentary party of INC decided to
contest one Mr Ajikumar, the member from Ward No.11, for
the said vacancy and issued a whip to all the INC members in
that regard. The District Congress Committee had also
directed the respondent, the writ petitioner, not to contest the
WP(C) NO.11915 OF 2024
2024:KER:67716
election to be held on 01.10.2021. It is submitted that the
party had issued a whip directing her not to file nomination in
the election to be held on 01.10.2021 and the petitioner in
the Original Petition, who was the parliamentary party leader,
had served both the whips to the respondent on 30.03.2021,
but she refused to accept the same. It is submitted that
the respondent accepted the whip to vote in favour of
Mr.Ajikumar and acknowledged the receipt of the same.
However, she refused to accept the whip which directed her
not to contest the election to be held on 01.10.2021. Defying
the whip, the petitioner did not vote for the candidate
sponsored by the INC and acting with the support of LDF,
defeated the candidate sponsored by the INC and thus, the
respondent voluntarily abandoned her membership from the
INC, which had fielded her as a candidate as aforestated.
3. The respondent, the writ petitioner, filed an
objection stating that she was not informed of the whip issued
by the DCC President and that the President of the Congress
WP(C) NO.11915 OF 2024
2024:KER:67716
Mandalam Committee had informed her to contest in the
election to be held on 01.10.2021. It is also contended that
the petitioner in the Original Petition was not the leader of the
Parliamentary Party. Though the petitioner had exercised the
vote in favour of the UDF candidate Ajikumar, the vote was
invalid as she forgot to write her name and signature on the
reverse side of the ballot paper due to excessive pressure and
coercion exerted by the member of the UDF including the
petitioner.
4. The Commission, after considering the oral
evidence of PWs.1 to PW4, RW1 to RW4 and Exts.A1 to A7 and
B1 and B2, found that the petitioner was handed over the
whip on 01.10.2021 and which was accepted by her. The
copy of the whips and the intimation to the Secretary were
marked as A3 to A6. The respondent had also given a
nomination defying the party's direction and won with the
support of LDF. It is also found that she purposefully made
her vote invalid. The evidence of PW4, the DCC President and
WP(C) NO.11915 OF 2024
2024:KER:67716
the evidence of PW2, who was a member of the Grama
Panchayat representing Ward No.4 saying that the authority
to issue whip is in DCC President were considered. RW2, the
Mandalam President who is stated to have directed the writ
petitioner to contest had also deposed that the authority to
issue whip was in the DCC President. The Commission found
that the direction issued to the writ petitioner not to contest
for the post was defied and that despite a direction to vote in
favour of Ajikumar, the same was also not obeyed and the
said conduct was nothing but disobeying the whip resulting in
disqualification as defined under the second limb to Section
3(1)(a). The Commission further found that after having
elected as an official candidate of INC and standing for
election as a member of the Standing Committee with the
help of the rival party and defeating the candidate sponsored
by the INC, the said act can only be treated as an act of
disloyalty, which amount to voluntarily giving up her
membership of that party, attracting the first limb of Section
WP(C) NO.11915 OF 2024
2024:KER:67716
3(1)(a) of the Act. Resultantly, the Original Petition was
allowed and the writ petitioner was declared disqualified for
being a member. There will be a further direction declaring
that the writ petitioner is disqualified for contesting as a
candidate in an election to any Local Authorities for a period
of six years provided under Section 4(3) of the Act.
5. The writ petition is filed challenging Ext.P3 order
issued by the Commission. Learned counsel for the petitioner
argues that the petitioner never violated the whip, but she
cast her vote in favour of the candidate named by the
President of the DCC, even though he won as a rebel
candidate by defeating the official candidate of INC. It is
submitted that the petitioner never received any whip
directing her not to contest the election. For what purpose, a
whip can be issued is stated in the Act. Thus, it is contended
that the whip issued is invalid and that the Commission could
not have found that there is voluntary leaving of membership
or defection within the meaning of the Act. He also relies on
WP(C) NO.11915 OF 2024
2024:KER:67716
the judgments of this Court in Joseph K.M. v. Babychan
Mulangasseri and others [2015 (1) KHC 111], Sandeep
M.T. and others v. Kerala State Election Commission and
others [2015 (5) KHC 133], Sujith Sreerengum v. Sunil
Sradheyam [2023 (3) KHC 482], Sivadasan K. v. Kerala
State Election Commission, Tvm and another [2020 (6)
KHC 408] and Regi Francis v. Kerala State Election
Commission, Tvm and another [2013 (2) KHC 22].
6. The learned counsel appearing for the Election
Commission, Sri. Deepu Lal, submits that there were clear
directions issued by the party which fielded him as a
candidate. There was a whip issued directing the petitioner to
vote for one Ajikumar. The petitioner had voted but had
deliberately cast her vote without writing her name and
signing on the reverse side of the ballot paper, which was
invalid. The petitioner was an elected member and his
contention is that the said act of making the vote invalid was
deliberate. He also argues on the basis of the judgments of
WP(C) NO.11915 OF 2024
2024:KER:67716
this Court in Faisal P.A. v. K.A.Abdulla Kunhi and another
[2008 (3) KHC 267] and Shameena Irahimkutty and others
v. Kerala State Election Commission and another [2020
(6) KHC 354] that the direction of the party is binding on the
petitioner though it is not a direction in writing as
contemplated under the Act, nevertheless, it constitutes a
ground for disqualification. He also brings to my notice the
Kerala Panchayat Raj (Standing Committee) Rules, which
prescribes the manner in which a vote has to be cast.
7. In the instant case, the writ petitioner herself
submitted that it was on the coercion from the members of
the INC that she had deliberately made the vote invalid.
Considering the evidence adduced before the Commission
and the admitted facts prove that the petitioner, who was
fielded as a candidate from INC, did not vote as per the whip
admittedly issued to her in favour of Ajikumar and had
contested in the election for which also, there was a direction
in writing and had defeated the candidate fielded by her own
WP(C) NO.11915 OF 2024
2024:KER:67716
party. The said act is nothing but a disloyal act, attracting
disqualification. The Commission had correctly construed the
pleadings and the evidence on record and had come to the
right conclusion that the petitioner must be treated as having
voluntarily abandoned her membership from the party by her
conduct. I do not find any error in the orders passed by the
Election Commission which call for no interference.
The writ petition is, accordingly, dismissed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
Jvt/7.9.2024
WP(C) NO.11915 OF 2024
2024:KER:67716
APPENDIX OF WP(C) 11915/2024
PETITIONER EXHIBITS :-
TRUE COPY OF THE LETTER DATED 30.09.2021 ISSUED
BY THE PRESIDENT DCC, PATHANAMTHITTA DIRECTING TO
EXHIBIT P1
CAST VOTE TO AJKUMAR
TRUE COPY OF THE LETTER DATED 30.09.2021 ISSUED
BY THE PRESIDENT DCC, PATHANAMTHITTA DIRECTING
THE PETITIONER TO NOT CONTEST IN THE ELECTION TO
EXHIBIT P2
THE POST OF STANDING COMMITTEE MEMBER , WHICH WAS
MARKED AS A4 IN EXT.P3 ORDER
TRUE COPY OF THE ORDER OF THE STATE ELECTION
EXHIBIT P3 COMMISSIONER IN O.P.NO.28/2021 DATED 22.2.2024
TRUE COPY OF THE LETTER DATED 30.09.2021 ALONG
WITH WHIPS DATED 30.09.2021 GIVEN BY THE DCC
EXHIBIT P4
PRESIDENT TO THE ASSISTANT RETURNING OFFICER
TRUE COPY OF THE LETTER DATED 30.09.2021 ALONG
WITH WHIPS DATED 30.09.2021 GIVEN BY THE DCC
EXHIBIT P5
PRESIDENT TO THE RETURNING OFFICER
RUE COPY OF THE LETTER DATED 1.10.2021 ISSUED BY
EXHIBIT P6 VIJU THOMAS, MANDALAM PRESIDENT TO THE DCC
TRUE COPY OF THE LETTER DATED 1.9.2021 ISSUED BY
THALAYAR GOPI, MEMBER OF DCC, TO THE PRESIDENT OF
EXHIBIT P7
DCC
