Usha Vijayan vs Kerala State Election Commission
2025 Latest Caselaw 6011 Ker

Kerala High Court

Usha Vijayan vs Kerala State Election Commission on 20 May, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                    2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
                                  1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                  &
         THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
  TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
                         WA NO. 1993 OF 2024
        AGAINST THE ORDER/JUDGMENT DATED 05.112024 IN WP(C)
NO.31465 OF 2024 OF HIGH COURT OF KERALA

APPELLANT(S)/WRIT PETITIONER:

            USHA VIJAYAN,
            AGED 54 YEARS
            D/O. PADMANABHAN, ADICHUMAKKAL VEEDU, MORCAUD,
            KOOVAPALLI P.O., IDUKKI, PIN - 685590

            BY ADVS.
            AMAL KASHA
            T.B.HOOD
            M.ISHA

RESPONDENT(S)/RESPONDENT:

    1       KERALA STATE ELECTION COMMISSION,
            REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O.,
            THIRUVANANTHAPURAM, PIN - 695033

    2       PROF. M.J. JACOB,
            S/O. JOSEPH, MUNDANCKAL HOUSE, KUDAYATHOOR P.O.,
            IDUKKI, PIN - 685590

            BY ADV DEEPU LAL MOHAN


     THIS    WRIT   APPEAL    HAVING     BEEN   FINALLY   HEARD   ON
20.05.2025, ALONG WITH WA.2036/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
                                                     2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
                                  2


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                  &
         THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
  TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
                         WA NO. 2036 OF 2024
        AGAINST THE ORDER/JUDGMENT DATED 05.11.2024 IN WP(C)
NO.31470 OF 2024 OF HIGH COURT OF KERALA

APPELLANT(S)/PETITIONER:

            USHA VIJAYAN,
            AGED 54 YEARS
            D/O. PADMANABHAN, ADICHUMAKKAL VEEDU, MORCAUD,
            KOOVAPALLI P.O., IDUKKI, PIN - 685590

            BY ADVS.
            AMAL KASHA
            M.ISHA
            T.B.HOOD

RESPONDENT(S)/RESPONDENT:

    1       KERALA STATE ELECTION COMMISSION,
            REPRESENTED BY ITS SECRETARY, VIKAS BHAVAN P.O.,
            THIRUVANANTHAPURAM, PIN - 695033

    2       ANJALEENA,
            W/O. SIJO, VARAKALLIL, KANJAAR,
            KUDAYATHOOR P.O., IDUKKI, PIN - 685590

            BY ADV DEEPU LAL MOHAN


     THIS    WRIT   APPEAL    HAVING     BEEN   FINALLY   HEARD   ON
20.05.2025, ALONG WITH WA.1993/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
                                                  2025:KER:34427
WA NOs.1993/2024 & 2036 OF 2024
                                 3


                         JUDGMENT

[WA Nos.1993/2024, 2036/2024]

AMIT RAWAL, J.

1. Two writ appeals have been preferred

against the judgment dated 05.11.2024 arising out of two

writ petitions bearing Nos.31465 of 2024 and 31470 of 2024

challenging the order of State Election Commission. Two

petitions have been preferred for disqualifying the appellant

- writ petitioner, of having voluntarily abandoned the

membership and joined the other party after having been

elected as a member of Panchayat on the party ticket, one

by the District President of the political party Kerala

Congress (M) (P.J.Joseph Group) and the other by another

member of the council. Both the petitions were contested

by the appellant - petitioner and after contest, the State

Election Commission accepted the petitions by removing the

appellant - petitioner from the post of member of Panchayat

and further barring her to contest the election for a period of 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

six(6) years. Writ petitions against the said order have

been dismissed and in that background, the writ appeals

have been preferred.

2. Succinctly the facts in brief for adjudication

of the lis are as under:

In December, 2020, appellant contested the election

as a member of Kudayathoor Panchayat under the 'Chenda'

symbol allotted to the Kerala Congress (M) P.J.Joseph Group,

which is a constituent of the United Democratic Front (UDF).

Later she was elected as the president of the Panchayat. On

31.01.2022, she left the UDF and joined the rival coalition -

Left Democratic Front (LDF). The aforementioned act gave a

cause of action to the District President of political party to

issue written instructions to the appellant - petitioner to

resign from the post of the President of Panchayat. Similarly,

one Anjaleena belonging to Indian National Congress and an

elected member of Panchayat also filed O.P.No.3 of 2022

before the Kerala State Commission for declaration of 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

disqualification of the appellant on account of having

abandoned the membership and defected.

3. Despite having been communicated with the

aforementioned information, appellant-petitioner did not

step down, resulted into issuance of notice of no-confidence

motion in March 2022. However, on account of non-

fulfillment of majority, no-confidence motion failed. In other

words, out of thirteen(13) members only seven(7) members

attended the meeting. Two(2) among them abstained.

Having left with no other choice, on 20.04.2022, the District

President, Prof.M.J.Jacob preferred O.P.No.7 of 2022 before

the Kerala State Election Commission for disqualification of

appellant - petitioner on account of having defied the whip

as changing the party amounting to voluntary abandonment

of membership in the political party. The grounds in the

order of State Election Commission, raised before this court

and Single Bench are common, therefore are not reproduced

to avoid repetition and summarized hereinbelow:

2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

I. Kerala Congress (M) P.J. Joseph Group is not

a registered political party and therefore, the

provisions of Kerala Local Authorities (Prohibition of

Defection) Act, 1999 was not applicable. Kerala

Congress (M) is a recognised State Party with

symbol of 'Two Leaves', whereas the dispute with

regard to the two parties which emanated from the

Kerala Congress (M) Group was under dispute and

by judgment of this Court, both the parties were

given separate symbol for contesting the election

and in the absence of political party, which defected

the Kerala Congress (M) Group by becoming a

Kerala Congress (M) P.J.Joseph Group in the

absence of registration, could not, without recording

the satisfaction of the political party, as the

president issued directions to step down or pass no-

confidence motion.

II. There is no evidence to establish the

decision of political party and therefore the direction 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

of the president was on account of his own lapse by

any sufficient reasons. Kerala State Election

Commission abdicated in not recording any finding

regarding the provisions of section 3 of the Anti-

defection Act, 1999.

III. There are material contradictions in the

pleadings regarding the name of the political party.

Service of letter directing the appellant to resign

from the post of President had also not been

established and in support of the contention, relied

upon the judgment of this Court [2015 (5) KHC

133] in Sandeep M.T. and Others v. Kerala

State Election Commission and Others to

contend that there has to be sufficient evidence to

indicate that the members have voted in favour no-

confidence motion contrary to the directions issued

by the political parties. In other words, the decision

of political party was sine qua non for stepping down

or attract the provisions of the Kerala Local 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

Authorities (Prohibition of Defection) Act, 1999.

IV. Praveena Ravikumar v. State Election

Commission [2024 (2) KHC 184] has been cited

to contend that in the absence of refusal to receive

the notice of the communication of political party

though would amount to service but cannot be said

to be acted upon until and unless there is a

compliance of the law.

4. On the other hand, learned counsel

appearing on behalf of the Kerala State Election Commission

as well as the petitioners before the Election Commission, in

support of the order of the Election Commission as well as of

the Single Bench contended that the act and conduct of the

appellant - petitioner in changing the alliance with the other

party amounted to defection and abandonment of the

membership. She did not act according to the whip of the

party which is a mandatory requirement as provided under

Section 3(1)(a) of the 1999 Act. There has been compliance 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

of provisions of Rule 4 of the Kerala Local Authorities

(Disqualification of Defected Members) Rules, 2000, which

empowers the political party to give directions to its member

to step down. Having failed to adhere both the directions of

not attending the no-confidence motion as well as stepping

down the post of President, amounted to abandonment and

violation of whip attracting the provisions as mentioned

above and thus urged this Court for dismissal of the writ

appeals with exemplary cost.

5. We have heard the learned counsel for the

parties and appraised the paper books.

6. For adjudication of the lis aforementioned, it

would be expedient to extract Section 3 of the 1999 Act. The

same reads as under:

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) if a member of a local authority belonging to any 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing 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, votes or abstains from voting, -

(i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of a Standing Committee or the Chairman of a Standing Committee; or

(ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or in an voting on a no-confidence motion against any one of them expect a member of a Standing Committee;

(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 this behalf in the manner prescribed, votes or abstains from Voting, -

(i) in a meeting of a Municipality, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or

(ii) in a meeting of a Panchayat in an election of its President, Vice-President, a member of a Standing 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

Committee or the Chairman of the Standing Committee; or in an voting on a no-confidence motion against any one of them except a member of a Standing Committee;

(c) if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority.

(2) The direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.

(3) Where any dispute arises regarding the direction issued under this section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid.

7. As per the provisions of Section 3(1)(a), it is

evident that if a member of a local authority belonging to

any political party voluntarily gives up his membership of

such political party, or if such member, contrary to any 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

directions in writing 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, votes or abstains from

voting in the meeting of Municipality, in an election of its

Chairperson, Deputy chairperson, a member of Standing

Committee or the Chairman of a Standing Committee, in a

meeting of Panchayat, in an election of its President, Vice

president, a member of a Standing Committee or the

Chairman of the Standing Committee or in a voting on a no-

confidence motion against any one of them except a

member of Standing Committee, is disqualified on the

ground of defection.

8. Sub-section (2) of Section 3 prescribes that

the direction issued in writing for the purpose of Clause (a)

and (b) shall be given to the members concerned in the

manner as may be prescribed. In the instant case, there is

no dispute with regard to the receipt of the directions issued

by the political party through its President duly authorised to

step down from the post of the President of Panchayat but 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

the appellant-petitioner did not adhere. The aforementioned

cause of action arose in favour of the political party as the

appellant - petitioner had joined LDF from the other party

which would tantamount close to the defection much less

abandonment of membership as well as having not acted to

the whip of the political party which is a mandatory

requirement of law as per the provisions of 1999 Act. The

contention that the non-receipt of the notices of no-

confidence motion have not only been explicitly pondered by

the State Election Commission as well as by the Single

Bench found to be against the appellant - petitioner is

concerned, it is settled law that while sitting in a writ

court as well as Intra court appeal, finding of fact and

law arrived at by the State Election Commission when

the parties have led in extensive evidence, courts

cannot assume the role of an appellate court by sitting in

the arm chair and re-appreciate and re-examine the

evidence until and unless certain material contradiction is

found out, which is conspicuously wanting in the present 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

case. In this view of the matter, we are of the view that both

appeal sans merit.

9. Argument with regard to the non registration of

the party which had been bifurcated from the main party

would pale into insignificance for the reason that appellant -

petitioner had contested the election on the basis of the

symbol of the party which was also not registered. Thus

cannot be permitted to approbate and reprobate in the same

manner by accepting one part of it and assailing the other

one.

There is no illegality and ambiguity in the judgment

of the Single Bench dismissing the writ petitions by

upholding the order of State Election Commission.

Accordingly, these writ appeals stand dismissed.

Sd/-

AMIT RAWAL, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE nak 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

PETITIONER EXHIBITS

Exhibit P3(a) TRUE ENGLISH TRANSLATION OF EXT. P3 AFFIDAVIT

Exhibit P4(a) TRUE ENGLISH TRANSLATION OF EXT. P4 DEPOSITION

Exhibit P5(a) TRUE ENGLISH TRANSLATION OF EXT. P5 DEPOSITION

Exhibit P6(a) TRUE ENGLISH TRANSLATION OF EXT. P6 DEPOSITION

Exhibit P7(a) TRUE ENGLISH TRANSLATION OF EXT. P7 AFFIDAVIT

Exhibit P8(a) TRUE ENGLISH TRANSLATION OF EXT. P8 DEPOSITION 2025:KER:34427 WA NOs.1993/2024 & 2036 OF 2024

PETITIONER EXHIBITS

Exhibit P3(a) TRUE ENGLISH TRANSLATION OF EXT P3 AFFIDAVIT

Exhibit P4(a) TRUE ENGLISH TRANSLATION OF EXT P4 DEPOSITION

Exhibit P5(a) TRUE ENGLISH TRANSLATION OF EXT. P5 DEPOSITION

Exhibit P6(a) TRUE ENGLISH TRANSLATION OF EXT. P6 AFFIDAVIT

Exhibit P7(a) TRUE ENGLISH TRANSLATION OF EXT P7 DEPOSITION

Exhibit P10(a) TRUE ENGLISH TRANSLATION OF EXT. P10 LETTER

Exhibit P11(a) TRUE ENGLISH TRANSLATION OF EXT. P11 MINUTES