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2000 DIGILAW 478 (KER)

Shajahan v. Chathannoor Grama Panchayat

2000-08-31

JACOB BENJAMIN KOSHY, M.RAMACHANDRAN

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JUDGMENT J.B. Koshy, J. 1. Appellant/petitioner is a member of Chathannoor Grama Panchayat Committee. He was elected as a candidate of a recognised political party (say 'A' party) from Ward No.l1. He was elected as the President of the Panchayat also. He continued as the President for about 60 days. Thereafter, a lone member belonging to another Party withdrew his support and, therefore, the President, supported by the 'A' party lost majority in the Panchayat Committee. Petitioner tendered his resignation from the 'A' party dissatisfied with the conduct of the leaders. Thereafter, Presidential election was held on 19-1-2000 in which petitioner and second respondent contested and the petitioner was declared elected. Second respondent filed a petition before the State Election Commission under S.4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (in short 'the Act') for declaring that petitioner has forfeited his membership and disqualified. It was contended that petitioner had voluntarily given up his membership from the 'A' party and that he abstained from voting in favour of his party contrary to the directions issued by the party. It was further submitted that even though he submitted resignation, resignation was not formally accepted and, therefore, he is not liable for disqualification. Evidence was adduced by both parties. Witnesses were examined and by Ext. P10 order, State Election Commission allowed the application filed by the second respondent and declared that petitioner has committed defection as mentioned by S.3(1) (b) of the act and incurred disqualification from continuing as a member of the Grama Panchayat committee. Consequently, petitioner became disqualified from contesting the election for six years. Challenge against Ext. P10 order was not accepted by the learned single Judge. 2. Heard the learned counsel for the petitioner, Mr.N. Nandakumara Menon for the State Election Commission and Mr. Thampan Thomas for the second respondent. 3. Section 3(1) (a) of the Act reads as follows "3. Consequently, petitioner became disqualified from contesting the election for six years. Challenge against Ext. P10 order was not accepted by the learned single Judge. 2. Heard the learned counsel for the petitioner, Mr.N. Nandakumara Menon for the State Election Commission and Mr. Thampan Thomas for the second respondent. 3. Section 3(1) (a) of the Act reads as follows "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 local authority belonging to any 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 Municipality, in an election of its Chairperson, Deputy Chairperson, a member of 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 a voting on a no-confidence motion against any one of them except a member of a Standing Committee; . The Election Commission accepted the contention of the petitioner that no whip was issued by the party to him. However, Election Commission found from the conduct of the person and from the evidence that the petitioner voluntarily gave up his membership of original party and, therefore, found him disqualified. The fact that petitioner submitted resignation is not disputed. Petitioner himself admitted that he submitted resignation. According to him, it was not accepted formally. Till there is acceptance, it cannot be found that he committed defection. But, the Election Commissioner noticed that after submission of his resignation he contested for presidentship. He also submitted that he contested for presidentship without getting permission from 'A' party on whose banner he was elected. It was admitted by him that none of the 'A' party members supported him in the subsequent president election after submission of his resignation letter and he was supported by the parties other than 'A' party. He also submitted that he contested for presidentship without getting permission from 'A' party on whose banner he was elected. It was admitted by him that none of the 'A' party members supported him in the subsequent president election after submission of his resignation letter and he was supported by the parties other than 'A' party. Therefore, the Election Commission came to the conclusion that he had voluntarily given up his membership from 'A' party. The word used in the section is not resignation; but 'voluntarily gives up his membership considering the very same meaning used in para 2(1) (a) of Schedule.10 of the Constitution of India, in the decision reported in Ravi S. Naik v. Union of India and others ( AIR 1994 SC 1558 ), the Supreme Court held that the words 'voluntarily give up his membership are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. It follows 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 he belongs. In that case, it was held by the Supreme Court that from the fact that the member in question accompanied the leader of opposite party to the Governor and told that the member supported to form a Council of Ministers, show that he is voluntarily giving up his membership from the original party. Similarly, the words used in S.3 (1) (a) of the Act 'voluntarily gives up his membership' has a wider meaning than resignation. In this case, it is admitted by the petitioner that after submission of his resignation he did not vote for the person who was supported by the 'A' party. The State Election Commissioner took a clear inference from the conduct that he has voluntarily gave up his membership in the party. 4. Appellant/petitioner relied on the decision reported in G. Viswanathan v. Speaker T.N. Legislative Assembly ( AIR 1996 SC 1060 ) and argued that one can Se disqualified only if it is proved that he has joined another party or voted with that party. According to him, he belongs to the same party. 4. Appellant/petitioner relied on the decision reported in G. Viswanathan v. Speaker T.N. Legislative Assembly ( AIR 1996 SC 1060 ) and argued that one can Se disqualified only if it is proved that he has joined another party or voted with that party. According to him, he belongs to the same party. That is a case where the Supreme Court was considering the question of expulsion of a member from the party. The meaning of the words 'voluntarily given up his membership ' was not considered in that case. Facts of this case are entirely different. Learned single Judge as well as Election Commissioner also noted that no whip was issued to the petitioner because he was not considered as a member of 'A' party after submission of his resignation. After submission of resignation, petitioner did not attend any of the party meetings of the 'A' party. From the totality of evidence, it was found by the Election Commission that he ceased to be member of 'A' party after submission of his resignation and that party also treated him accordingly. 5. It is submitted by the petitioner that Election Commissioner did not apply his mind and did not consider the entire evidence properly. Under S.4(2) of the Act, an order passed by the State Election Commission is final. There is no appeal or review. In fact, we are not sitting in appeal or in revision. The only question to be considered in a judicial review is whether the order was passed without jurisdiction or whether there is any patent error on record. We are unable to see any patent error on record in the findings of the Election Commission. In fact, from the evidence, the Election Commission came to the view that petitioner has voluntarily given up his membership. That is a view possible from the evidence adduced and we are not sitting in appeal and it cannot be stated that the findings of the Election Commission are perverse so as to warrant interference of this Court, 6. Finally, it is submitted that disqualification for six years is harsh. That is a view possible from the evidence adduced and we are not sitting in appeal and it cannot be stated that the findings of the Election Commission are perverse so as to warrant interference of this Court, 6. Finally, it is submitted that disqualification for six years is harsh. S.4 (3) of the Act provides that where the State Election Commission decides that a member has become subject to disqualification under sub-section (2), he shall cease to be a member from the date of such decision and shall be disqualified from contesting as a candidate in an election to any local authority for six years from that date. It is a statutory provision and the above statutory provision cannot be altered by the Election Commission. Petitioner has not challenged the provisions of the Act in this proceedings as unconstitutional because the provisions are harsh. The learned single Judge has considered the entire matter and dismissed the original petition. We see no ground to disagree with the learned single Judge. Therefore, we dismiss the appeal.