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Nazeerkhan S vs The Kerala State Election ... on 15 July, 2008
Jancy Chandy vs Jose Puthenkala on 17 August, 2006
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Kerala High Court
Sheeba James vs T.C.George
       

  

  

 
 
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

               THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

          THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934

                      WP(C).No. 11655 of 2012 ()
                       --------------------------

     PETITIONER(S):
     -------------

         SHEEBA JAMES
         W/O JAMES, PRESIDENT, KADAMAKUDY GRAMA PANCHAYATH
         KADAMAKUDY, PIN-682 027.

         BY ADVS.SRI.S.SREEKUMAR (SR.)
                 SRI.P.PRIJITH
                 SRI.K.K.JAYARAJ NAMBIAR
                 SRI.P.MARTIN JOSE

     RESPONDENT(S):
     --------------

     1.  T.C.GEORGE
         MEMBER, WARD NO.5, KADAMAKUDY GRAMA PANCHAYAT
         KOTHAD P.O., PIN-682 027.

     2.  KERALA STATE ELECTION  COMMISSION,
         THIRUVANANTHAPURAM, PIN-695001.

         BY ADV.SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION

        THIS WRIT PETITION (CIVIL)    HAVING COME UP FOR ADMISSION ON
20-06-2012, THE COURT ON 05-07-2012 DELIVERED THE FOLLOWING:

WPC NO.11655/12


                               APPENDIX


PETITIONER'S EXHIBITS


EXHIBIT P1: TRUE COPY OF PETITION IN O.P.NO.2 OF 2011 FILED BY THE 1ST
RESPONDENT BEFORE THE 2ND RESPONDENT ON 6.12.2010.

EXHIBIT P2: TRUE OCPY OF OBJECTION DATED 16.3.2011 TO EXHIBIT P1 FILED
BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P3: TRUE COPY OF REGISTER MAINTAINED UNDER RULE 3 OF THE RULES.

EXHIBIT P4: TRUE COPY OF ORDER IN O.P.NO.2/2011 DATED 5.5.2012 OF THE
2ND RESPONDENT.




                            //True Copy//


                                         PA to Judge
Rp



                      ANTONY DOMINIC, J.
                     ================
                  W.P.(C) NO. 11655 OF 2012
                 ===================

              Dated this the 5th day of July, 2012

                         J U D G M E N T

Petitioner who was the respondent in OP No.2/11 on the file of the 2nd respondent has filed this writ petition seeking to quash Ext.P4 order dated 5/5/2012 passed by the 2nd respondent.

2. Case of the petitioner is that she had requested the Congress President to field her as a candidate of Indian National Congress in Ward No.II of Kadamakudy Grama Panchayat. However, she was denied the seat and therefore she submitted nomination as an independent candidate. The nomination was accepted and she contested the election as an independent candidate with gas cylinder as her symbol and won with a majority of 125 votes. Thereafter, she contested the election to the post of President of the Panchayat with the support of LDF coalition and defeating the rival candidate fielded by the UDF coalition, she was elected as the President of the Panchayat.

3. The 1st respondent, the elected member from Ward No.V of the Panchayat, who is also the parliamentary party leader of UDF coalition filed OP No.2/11 under Section 4 of the Kerala WPC.No.11655/12 :2 : Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as 'the Act' for short) before the 2nd respondent seeking to disqualify the petitioner under Section 3(1)(b) of the Act. Petitioner filed Ext.P2 objection reiterating her contention that she fought and won the election as an independent candidate without the support of any political party.

4. Before the 2nd respondent, on behalf of the 1st respondent, six witnesses were examined and none was examined on behalf of the petitioner. Exts.P1 to P8, X1 to X4, C1 and R1 were marked. Finally, the 2nd respondent passed Ext.P4 order holding that the petitioner contested the election as an independent candidate with the support of UDF coalition. It was held that violating the whip, with the support of LDF coalition, she contested and was elected as the President of the Panchayat and hence committed defection. It is this order which is under challenge in this writ petition.

5. The first contention raised by the learned senior counsel for the petitioner was that there was no pleading in Ext.P1 petition regarding the existence of a coalition as defined in the Act. In support of his plea that strict rules of pleadings will have WPC.No.11655/12 :3 : to be insisted in an election petition, counsel relied on the judgment of this Court in Chinnamma Varghese v. State Election Commission (2010(3) KLT 426). In order to appreciate this contention, it is necessary to make reference to the pleadings contained in Ext.P1 petition filed by the 1st respondent and Ext.P2 objection filed by the petitioner.

6. In para 2 of the petition, it is stated that "respondent is the elected member from Ward No.XI, Pizhala North, Kadamakudy Grama Panchayat in the said election. The respondent contested in the election as an independent candidate supported by UDF and belonged to UDF coalition." It is further stated in para 3 that "2 independent candidates, including the respondent, supported by UDF also contested in the election". In para 4, it is averred that "UDF placed its candidates in all 13 wards. 11 candidates contested as Congress (I) candidates in hand symbol. The respondent was placed by UDF in Ward No.XI as an independent candidate supported by UDF coalition". In para 7, referring to a public meeting held on 12/10/2010, which was inaugurated by Mr.Ajay Tharayil, KPCC General Secretary, it is stated that "about 500 UDF workers attended the said meeting. The respondent WPC.No.11655/12 :4 : who was present in the said convention was introduced to the electorate and the UDF workers as the official candidate of UDF. The respondent who attended the said meeting caused to believe the electorate and UDF workers that she is the official candidate of UDF coalition. The respondent also addressed and delivered her speech through loud speaker in the said meeting as the candidate of UDF." Again in para 8 regarding the election convention organised by UDF on 15/10/2010, inaugurated by Mr.Mohammed Shiyas, State General Secretary of Youth Congress (I), it is stated that "respondent who attended the convention delivered her speech and declared that she is the official candidate of UDF. The electorates were caused to believe by the respondent that she is a UDF candidate". Further referring to "meet the candidates" of UDF held on 16/10/2010 at YMA Hall, Kothad inaugurated by Prof.K.V.Thomas, Union Minister for Agriculture, it is averred that "the respondent who was introduced as the official candidate of UDF, caused to believe all voters in the Panchayat that she is the official candidate of UDF, representing Ward No.XI." Further referring to a public meeting held on 22/10/2010, it is stated that the respondent participated in the WPC.No.11655/12 :5 : meeting and "delivered her speech through microphone as the official candidate of UDF, representing Ward No.XI". Reference is also made to Annexures-3, 4 and 5, posters, photographs and appeal published by the respondent. It is further stated in para 12 that "the respondent was placed and promoted by UDF as its official candidate in the election in Ward No.XI of Kadamakudy Grama Panchayat". In para 13 also, it is stated that the "respondent through the local visual channel namely 'Green 6 Channel' introduced the electorates that she is the official candidate of UDF and requested them to cast vote for her in the upcoming election".

7. As against the aforesaid pleading in the petition filed, in Ext.P2 objection filed by the 1st respondent, she contended that she contested the election as an independent candidate and she denied the allegation that she was supported by UDF or belonged to UDF coalition.

8. In para 8 of her objection, she stated thus: "It is further submitted that the UDF had no official candidate to contest in the election in Ward No.XI. But the LDF contested in the election in different wards of the Panchayat in the symbol 'Jeep'. One Rajanee Pradeep in ward No.XII contested in the election by the support of UDF in symbol 'canoe'. So at no point of time, the respondent requested the support of the UDF. Since WPC.No.11655/12 :6 : the UDF have not put their official candidate in ward No.XI they might have constrained to give external support to this respondent for defeating the LDF candidate in the said ward."

9. Therefore, in Ext.P1 petition filed by the 1st respondent, it has been clearly pleaded that there existed a coalition by name UDF coalition and that the petitioner was an independent candidate supported by the UDF coalition. In the objection filed by the respondent, apart from denying the allegation that she contested with the support of the UDF coalition, petitioner did not dispute the existence of the UDF coalition nor did she contend that such a coalition did not satisfy the requirements of Section 2

(ii) of the Act. In my view, if the petitioner had such a contention, it was for her to have pleaded it and adduced necessary evidence to substantiate the contention. This was not done. Further, petitioner has no case that such a contention was raised before the Election Commission or that it was not considered by the 2nd respondent. Therefore, the contention now raised has to be rejected for the reason that it is not raised in the pleadings or urged before the Election Commission.

10. Learned counsel then contended that even in the absence of a contention raised in the objection filed by the WPC.No.11655/12 :7 : petitioner, the sustainability of Ext.P1 has to be judged in the light of the pleadings contained in the petition itself. Though I am inclined to agree with the learned counsel that it is for the petitioner before the Election Commission to plead necessary facts in support of his case, I am satisfied that there are sufficient pleadings regarding the existence of UDF coalition. Therefore, if the petitioner herein, who was the respondent before the Election Commission, had a case that there was no such coalition or that the coalition did not satisfy the requirements of law, it was for her to plead the same and raise it as an issue before the Election Commission itself. Having chosen not to do so, it is not now open to the petitioner to plead that there did not exist a coalition as defined in the Act.

11. On merits also, I am unable to agree with the leaned counsel. The case of the petitioner is that she filed the nomination as an independent candidate. She also states that this claim was reiterated by her in the nomination paper itself. The pleadings in Ext.P1 shows that she contested with the support of the UDF coalition. The question whether an independent candidate who contest the election with the support of a coalition is deemed to WPC.No.11655/12 :8 : be a member of the coalition, has to be answered in the light of Section 2(ii) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, which reads as follows:

"2(ii) "coalition" means a coalition made between more than one political parties or between more than one political parties and one or more independents or between one political party and one or more than one independents or between more than one independents for the purpose of contesting any election of a local authority."
Explanation: A member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition."

12. A reading of this provision shows that a coalition between political parties and an independent candidate is a coalition as defined in Section 2(ii) of the Act. Further, in view of the explanation to the section, an independent member who stood as a candidate in the election with the support of coalition shall be deemed to be a member included in that coalition. Therefore, once it is found that the petitioner contested the election with the support of the UDF coalition, in view of the explanation to Section 2(ii) of the Act, she has to be deemed to be a member included in the UDF coalition. For this reason, I do not find any substance in the plea of the petitioner that the 1st respondent failed in making out a case that the petitioner was a WPC.No.11655/12 :9 : member of the UDF coalition.

13. On facts also, I am unable to accept the case of the petitioner. A reading of Ext.P4 order of the 2nd respondent shows that the 1st respondent, who had filed Ext.P1 petition, was examined as PW1. He gave a very detailed version regarding the defection alleged to have been committed by the petitioner. PW2, Sri.Ajay Tharayil, KPCC General Secretary gave a detailed version about the meetings held on 12/10/10 and 15/10/10 where the petitioner was introduced as a candidate of UDF in Ward No.11. He also spoke about the meeting held on 16/10/10 at Kothad YMA which was inaugurated by Prof.K.V.Thomas, Union Agriculture Minister, where the petitioner was similarly introduced. PW5 is the Congress Kadamakkuty Mandalam President and he too has given detailed version regarding the election of the petitioner and also the election to the post of President of the Panchayat. In Ext.P4 order, the 2nd respondent has made detailed reference to the evidence adduced in the proceedings and also took note of the fact that on behalf of the petitioner herein, no oral evidence has been adduced. It is in the light of the evidence thus adduced that the 2nd respondent came to the following conclusion: WPC.No.11655/12 :10 : "The evidence adduced on the side of the petitioner would clearly prove that there was no other candidate for UDF in ward No.11. The other candidates who contested against the respondent in Ward No.11 were admittedly belonging to LDF and BJP. Even in the objection the respondent has stated that the UDF might have been constrained to extend their support to her to defeat the rival candidates. This would abundantly clarify that the respondent had the support of UDF for her election from Ward No.11 of Kadamakkudy Grama Panchayat. It is true that while submitting her nomination before the Returning Officer and filing the declaration before the Panchayat she represented that she was contesting the election as an independent without the support of any political party or coalition. But the evidence would overwhelmingly prove that she was representing herself as a UDF candidate before the electorate. There is nothing to disbelieve the evidence tendered by PW2 and PW5. It is clearly found that she had solicited vote before the electorate as a candidate having the support of UDF. In the light of such evidence it can only be found that the respondent had contested the election as a candidate having the support of UDF coalition. The fact that the respondent did not enter the witness box nor offered herself for cross examination cannot be overlooked."

14. Further the 2nd respondent has also made reference to Ext.P3, the register maintained by the Panchayat under Rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, which states that the petitioner is an independent member without any support of any political party or coalition. On this aspect, the Commission has rightly held that as per Rule 5(3) of the Rules, for the purpose of disposing a petition WPC.No.11655/12 :11 : for disqualification filed under Rule 5(1), the Commission may, if it deems necessary, examine the veracity of the declaration filed by the member concerned under Rule 3(2) or may also examine as to whether the member belongs to a political party or to a coalition or is an independent member not included in a political party or a coalition, and the decision that the Commission may take on the basis of such examination in the matter shall be final. Therefore, the Commission has rightly found that the entires in the register made on the basis of the declaration made by the candidate, is not a determinative factor and that it is for the Commission to take a final decision on the issue having regard to the provisions of Rule 5(2) mentioned above.

15. Further, the Commission has also taken note of the fact that while submitting her nomination before the Returning Officer, the petitioner had represented that she was contesting the election as an independent candidate without the support of any political party or coalition. In this context, learned Senior counsel contended that since the petitioner filed her nomination as an independent candidate, even if she was supported by a political party or coalition subsequent to the filing of nomination, that will WPC.No.11655/12 :12 : not affect the independent status of the petitioner. Having considered this submission, I should confess my inability to accept it. Explanation to Section 2(ii) shows that a member who stood as a candidate in the election with the support of a coalition shall be deemed to be a member of the coalition. Therefore, the question to be considered is whether the candidate contested the election with the support of the coalition and not whether the candidate had the support of the coalition at the time of filing the nomination. Consequently, even if a candidate has filed the nomination as an independent candidate, if the election is contested with the support of the coalition and won, then such a member is deemed to be a member of the coalition. Therefore, I do not find any substance in this contention.

16. Now the question that survives to be considered is whether the petitioner is guilty of defining a whip validly issued by the UDF parliamentary party. The evidence tendered by PW1, the 1st respondent, shows that the parliamentary party meeting of the UDF was convened on 7/11/10 and that the petitioner had informed her inconvenience to participate in the meeting. It is also in evidence that in the said meeting Sri.Jainy Sebastian was WPC.No.11655/12 :13 : decided as the candidate for the post of President and Sri.Biju Thomas was decided as the Vice President and the 1st respondent was elected as the whip authorised to issue direction to all UDF members. It is also stated that the resolution passed in the meeting was forwarded to the Secretary of the Panchayat and a copy thereof was marked before the 2nd respondent as Ext.P6. 1st respondent further deposed that he served the direction to vote in favour of UDF candidates for President and Vice President to all members of the UDF and that the petitioner did not receive the same and therefore it was affixed on the outer door of her house. Copy of the direction so affixed has been marked as Ext.P7. In addition to the evidence tendered by PW1, PWs 3 and 4 examined in the proceedings have witnessed the affixture of the direction. The evidence thus adduced clearly proved that the 1st respondent was authorised to issue the direction to the members of UDF coalition, that a direction was served on the petitioner by affixture at her house, that she defied the whip, and that contrary to the direction, the petitioner contested the election and was elected as President with the support of the LDF coalition. She also voted in support of the LDF candidate to the post of Vice WPC.No.11655/12 :14 : President. Section 3 (1)(b)(ii) reads thus:-

"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.
(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,-
(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 a voting on a no confidence motion against any one of them except a member of a Standing Committee;

It was having regard to the above facts and the statutory provision that the 2nd respondent arrived at the following findings;

"It is further seen from the evidence that the petitioner had given direction to the respondent to cast vote to their official candidates for the post of President and Vice President. But the respondent had contrary to the said direction contested for the post of President by colluding with the LDF members and became the President. So from the above facts it is clear that the respondent had withdrawn from the UDF coalition and she also defied the direction given by PW1 and became the President with the support of the members of the opposite coalition. Thus the respondent is found to have committed defection as alleged by the petitioner."

In the light of the evidence, oral and documentary and in the WPC.No.11655/12 :15 : absence of any contra evidence, the conclusion arrived at by the 2nd respondent cannot be said to be faulty for any reason.

17. In this context, learned Senior Counsel also contended that parliamentary party meeting held on 7/11/2010, was convened by the President, Kadamakudy Mandala Congress (1) Committee. According to him, parliamentary party meeting can be convened only by its Convenor and relied on the judgment of this Court in Jancy Chandy v. Jose Puthenkala (2006(4) KLT

116). It is true that in the judgment relied on, it has been held that parliamentary party meetings are convened by its Convenor. However, Convenor of a parliamentary party can come into the picture only after a meeting of elected members are convened and a Convenor is elected. In this case, the meeting on 7/11/2010 was the first meeting of the elected members and it was in that meeting that the 1st respondent was elected as the Convenor. Therefore, this meeting could not have been convened by the Convenor and the meeting or what transpired therein cannot be invalidated on the ground that it was not convened by the Convener. For this reason, the principles laid down in the judgment relied on, has no relevance to this case. WPC.No.11655/12 :16 :

18. I have already found that the petitioner was an independent member of the UDF coalition. In the election to the President and Vice President, she voted contrary to the directions given in writing by the 1st respondent, who was the person authorised by the coalition in that behalf. This therefore shows by her conduct, she has withdrawn from the coalition and therefore she was liable to be disqualified in view of the provisions contained in Section 3(1)(b) of the Act. In similar case, this question was considered by this Court in Nazeerkhan v. Kerala State Election Commission (2008(2) KLJ 916), where it was held thus;

"22. In the judgment in Shajahan v. Chathannoor Grama Panchayat (2000 (2) KLJ
451), this Court held that the expression "voluntarily giving up membership" has a wider meaning than resignation. It was held that a person many voluntarily give up his membership of a political party even through he would not have tendered his resignation and that even in the absence of a formal resignation an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which be belongs. Following this judgment, on comparable facts, a Division Bench of this Court in its judgment in W.A.No.2351/05 has held as follows:
"However, the undisputed fact remains that the appellant's candidature was proposed by a member of the rival coalition namely, LDF WPC.No.11655/12 :17 : and was also seconded by a member of the rival coalition, namely, LDF. That would mean that the appellant himself could not muster support from his own party members to propose him and second him as a candidate of their party. On the other hand, he readily accepted the nomination by proposal and seconding by the members of the rival coalition. We are of opinion that the same would certainly amount to voluntary abandonment of the membership of his political party, in so far as he could have very well refused the support offered by the rival coalition members. After having accepted their support and contested against a candidate who was a member of his political party, he cannot now turn round and claim that he has not voluntarily abandoned the membership of his own political party".

23. Based on the evidence adduced the 1st respondent has found that the official candidate of the congress party was Sri.Kochukuttan Pillai. The undisputed facts show that the petitioner's candidature was proposed by an independent member and was seconded by a member of the rival LDF. He won the election entirely on the votes of the LDF members and an independent member. He did not secure even a single vote from the members of Congress to which he belonged. It is inspite of all these that he is now contending that his conduct did not amount to voluntarily giving up of membership of his political party and that he did not have notice of the case against him. His conduct has been pleaded with sufficient material particulars in Ext.P1 and he had notice of the facts based on which finding has been entered into. The 1st respondent has framed issued and the petitioner had opportunity to lead evidence also. In the adjudication, on the materials available, it has been rightly found that writ petitioner had WPC.No.11655/12 :18 : voluntarily given up his membership. In my view from the facts noticed above, the inference drawn from petitioner's conduct that he had voluntarily given up membership of his political party is unassailable."

This judgment was confirmed by the Division Bench in its judgment in Nazeerkhan v. Kerala State Election Commission (2009(2) KLT S.N. 28)

19. Thus the findings of the 2nd respondent that the petitioner was an independent member of the UDF coalition and that she has defied the direction given by PW1 and became the President with the support of the members of the LDF coalition is not vitiated on any of the grounds urged. If that be so, petitioner has rightly been disqualified under Section 3(1)(b) of the Act. Therefore, Ext.P4 order allowing Ext.P1 petition filed by the 1st respondent does not suffer from any infirmity warranting interference by this Court.

Writ petition is dismissed.

ANTONY DOMINIC, JUDGE Rp