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2005 DIGILAW 565 (KER)

Sheo Paul v. The Kerala State Election Commission

2005-08-23

THOTTATHIL B.RADHAKRISHNAN

body2005
Judgment :- The second respondent in these writ petitions filed petitions before the first respondent, the Kerala State Election Commission, hereinafter referred to as “Election commission”, seeking declaration that the writ petitioners have ceased to be members of the Angamaly Municipality, hereinafter, the “Municipality” for short, owing to disqualification on ground of defection in terms of Section 3(1) (a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, hereinafter, “the AD Act”, for short. 2. The contentions of the second respondent were two fold. Firstly, he, as the person authorized (hereinafter the “whip”) by the political party to which the writ petitioners belonged, had issued a direction to the writ petitioners to vote for Sri. K.S. Shaji in the election of the Chairman of the Municipality scheduled on 7-10-2003 and the writ petitioners acted contrary to the said direction and voted for the writ petitioner in W.P.(C) No.9896/2005 (arising from Op.No.152 of 2003 before the Election Commission). Secondly, it was contended that the writ petitioners had voluntarily given up their membership of the political party to which they belonged. 3. By the impugned common order (Ext.P4 in all the writ petitions), dated 21-3-2005, the Election Commission upheld the first among the contentions of the second respondent as regards all the writ petitioners. It further held that the petitioner in W.P.(C) No.9896/2005 had voluntarily given up his membership in the political party to which he belonged. The other writ petitioners were held to be not disqualified on this ground. Accordingly, the different petitions filed by the second respondent against the writ petitioners were allowed declaring that they had ceased to be members of the Angamaly Municipality from 21-3-2005 and they are disqualified as contesting as a candidate in the election to any local bodies for a period of six years from 21-3-2005. 4. On the basis of the pleadings and the arguments advanced, the following points arise for decision: I. Is the finding of the Election Commission that the writ petitioners voted contrary to the directions as provided for in Section 3(1) (a) of AD Act, in the election of the Chairperson of the Municipality, contrary to law? II. Is the finding of the Election Commission that writ petitioner in W.P.(C) No.9896/2005 had voluntarily given up his membership of the political party to which he belonged, contrary to law? 5. II. Is the finding of the Election Commission that writ petitioner in W.P.(C) No.9896/2005 had voluntarily given up his membership of the political party to which he belonged, contrary to law? 5. Before proceeding to consider the aforesaid points, it is necessary to note that, in the judicial review, in jurisdiction under Articles 226 and 227 of the Constitution of India, of decisions by the Election commission, in the absence of patent illegality or error of law or error of jurisdiction, interference may not be made. The writ court would not venture to re-appreciate the evidence and reverse the finding of facts arrived at after detailed consideration and after complying with the principles of natural justice, unless they are perverse, in the sense that they are unavailable on the materials on record. A reference to the decision of this Court in Annamkutty v. Baby (2000 (3) KLT 18) is apposite in this context. Point No.I 6. Ext.P1 Election Petitioner is filed by the second respondent alleging that he was elected as the whip to issue instruction to the Councillors belonging to the political party, that he had issued directions in his such capacity and that the writ petitioners acted contrary to the said directions while voting in the election. 7. In their objections, the writ petitioners had, inter alia, specifically contended that the second respondent was never elected as the whip and he had no right to issue any direction. 8. The relevant portion of Section 3 of the AD Act reads as follows: “3. 7. In their objections, the writ petitioners had, inter alia, specifically contended that the second respondent was never elected as the whip and he had no right to issue any direction. 8. The relevant portion of Section 3 of the AD 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 a 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 In a voting on a no-confidence motion against any one of them except a member of a Standing committee: (a)************************************ (b)****************; he shall be disqualified for being a member of that local authority.” 9. Section 3(1) (a) of the AD Act consists of two limbs, providing two grounds of disqualification. One is that a member belonging to a political party voluntarily gives up his membership of such political party. The other is that a member, contrary to any direction in writing issued by the political party to which he belongs or by a person authority authorized by it in this behalf in the manner prescribed, votes or abstains from voting in a meeting of a Municipality, in an election of its Chairperson…….. in a voting on a no-confidence motion…… 10. In exercise of the powers conferred under sub-section (1) of Section 7 of the AD Act, Kerala Local Authorities (Disqualification id Defected Members) Rules, 2000, hereinafter called “the Disqualification Rules” have been made and published. The manner in which a political party or coalition may give directions to its members is provided for in Rule 4 which reads as follows: “4. The manner in which a political party or coalition may give directions to its members is provided for in Rule 4 which reads as follows: “4. The manner in which a political party or Coalition may give direction to its members.- (1) If a political party or coalition gives any direction in respect of the casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3, it shall be in writing and such a direction shall be given,- (i) In the case of a member who belongs to a political party or is considered to be included in it: by the member whom the member of the said political party and the members considered to be included it in the local authority concerned elect for the purpose, on majority basis from among themselves; and (ii) In the case of a member who belongs to coalition or considered to be included in it; by the member whom the members of the said coalition and the members considered to be included in it in the local authority concerned elect for the purpose, on majority basis from among themselves. (2) The political party and the coalition having representation in a local authority shall, immediately when the member who shall issue direction under sub-rule (1) is elected, inform the fact to the Secretary. (3) While issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with the acknowledgement due and while effecting it by affixing it shall be done in the presence of at least two witnesses.” (emphasis supplied) 11. Section 3(1)(a) of the AD Act provides for issuance of a direction by the political party or an authority authorized by it in that behalf. Section 3(1)(a) of the AD Act provides for issuance of a direction by the political party or an authority authorized by it in that behalf. Rule 4(1) of the Disqualification Rules provides that if the political party gives any direction in respect of casting of vote in an election or in a voting as mentioned in Clause (a) of sub-section (1) of Section 3 of the AD Act, it shall be in writing and such a direction shall be given, in the case of a member who belongs to a political party, by the member whom the members of the said political party and the, members considered to be included in it in the local authority concerned, elect for the purpose. Sub-rule (2) of Rule 4 provides that the political party shall immediately when the member who shall issue direction under sub-rule (1) is elected, inform the fact to the Secretary of the local authority. 12. The wisdom behind such a rule is to ensure that the identity of the person (the whip) issuing the direction is ascertained with certainty and is beyond dispute. This is why the Secretary of the local authority is to be informed the fact of such an election of the whip. The information to the Secretary has to be given by the political party. The political party means political party registered under Section 29A of the Representation of the People Act, 1951, going by Section 2(xi) of the AD Act. 13. Having regard to the aforesaid legal position, it is necessary to consider whether, in view of the objections of the writ petitioners before the Election Commission challenging the authority of the second respondent herein as the whip, there was any material to hold that the second respondent is the whip elected and identified as provided for by the laws, as aforesaid. 14. Ext.P5(B) in Ext.P4 is the copy of the intimation given to the Secretary of the Municipality as regards the election of the second respondent as the whip. Ext.P5(A) in Ext.P4 is the receipt given by the Secretary of the Municipality for having received the original of Ext.P5(B) in Ext.P4. Ext.P5(B) in Ext.P4 is addressed to the Secretary of the Municipality by the second respondent himself and not by any political party. Ext.P5(A) in Ext.P4 is the receipt given by the Secretary of the Municipality for having received the original of Ext.P5(B) in Ext.P4. Ext.P5(B) in Ext.P4 is addressed to the Secretary of the Municipality by the second respondent himself and not by any political party. It is issued in the letterhead of the second respondent as the Chairman of the Standing Committee for Development in the Municipality and it bears the emblem of the Municipality. The second respondent has signed the same in his capacity as the Chairman of the Standing Committee of the Municipality. The recitals of the second respondent in the said document are that he has been elected as the whip of the Parliamentary party at a meeting of the Congress-I coalition held on 1-10-2003, presided over by DCC President Sri. K.P. Dhanapalan and that he has been instructed to issue whip as stated therein. The said document is not one, which is issued by the political party in terms of Rule 4(2) to the Secretary of the Angamaly Municipality. 15. The manner in which Rule 4(2) is couched is to exclude situations where a person can come forward to claim, even baselessly, that he has been appointed as the whip. It is, therefore, abundantly necessary that the information to the Secretary, of the fact of election of a member as the whip, is given by the political party as provided for in Rule 4(2). Such provision, in the context, cannot be construed in any manner other than what is available on a plain reading of the said sub-rule. The situation does not admit any other mode of establishing the election of the whip or the authority of a person as the whip. The law in this regard has to be strictly construed. This is all the more so because, the consequences flowing out of an order in the nature impugned one are drastic and penal in nature and affects the right of a citizen to hold an office to which he had been elected and also to contest in future elections to the local self-government institution. 16. Ext.P5(B) in Ext.P4, being not one in conformity with Rule 4(2), cannot be treated as a document by which the political party had informed the Second respondent is the whip elected in terms of Section 3(1) (a) of the AD Act sub-rule (1) of Rule 4 of the Disqualification Rules. 16. Ext.P5(B) in Ext.P4, being not one in conformity with Rule 4(2), cannot be treated as a document by which the political party had informed the Second respondent is the whip elected in terms of Section 3(1) (a) of the AD Act sub-rule (1) of Rule 4 of the Disqualification Rules. It is not even one issued by or on behalf of any political party. 17. In paragraph 24 of the impugned Ext.P4 order, the Election Commission had rightly noticed that the second respondent herein was bound to prove that he was duly elected as the whip of the parliamentary party of the political party in question. After adverting to rule 4(2) of the Disqualification Rules, in paragraph 26 of that order (at page 24 thereof), the Election Commission merely stated that the election of the whip was registered on 3-10-2003 and that this is clear from Ext.P5 series. However, the Election Commission erred in law in treating Ext.P5(B) as the communication in accordance with Rule 4(2) of the Disqualification Rules. The intimation of the election of the whip in terms of Rule 4(2) of the Disqualification rules is not merely one that would give probative value to the election of the whip as assumed by the Election Commission, but it is an indispensable requirement, a sine quo non, for the law to recognize a particular person as having been elected as the whip for the purpose of the AD Act and Disqualification Rules. It is more so because, the said pieces of law have to be construed in such manner as would not defeat the legitimate right of an elected councilor to be in office. So much so, the Election Commission acted contrary to law in holding that the second respondent herein was the whip of the political party in question. 18. Hence, point No.1 is answered by holding that the second respondent (the petitioner before the Election Commission) had not established that he was the whip of the parliamentary party of the political party in question as enjoined by Section 3(1) (a) of the AD Act read with Rule 4 of the Disqualification Rules. 18. Hence, point No.1 is answered by holding that the second respondent (the petitioner before the Election Commission) had not established that he was the whip of the parliamentary party of the political party in question as enjoined by Section 3(1) (a) of the AD Act read with Rule 4 of the Disqualification Rules. So much so, the finding in Ext.P4 order that the writ petitioners had voted in the election of the Chairperson of the Municipality contrary to the direction issued by the political party to which they belonged and are therefore disqualified from being members of the Municipal Council is contrary to law. Such findings and consequential declarations in that regard are liable to be set aside. I do so. Point No.II 19. The writ petitioner in W.P.(C).9896/2005 has been found to have voluntarily given up his membership of the political party to which he belonged. 20. Section 3(1) (a) of the AD Act provides, inter alia, that if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, he shall be disqualified for being a member of that local authority. In Ravi S. Naik v. union of India, 1994 Supp (2) SCC 641 = AIR 1994 SC 1558, the Apex Court laid down that the words “voluntarily given up his membership” are not synonymous with “resignation” and have a wider connotation. It was noticed that a person might voluntarily give up his membership of a political party even though he has not tendered his resignation from membership of that party. Even in the absence of a formal resignation from membership, 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 G. Viswanathan v. speaker, T.N. Legislative Assembly, (1996) 2 SCC 353, the Apex Court further pointed out that the act of voluntarily giving up the membership of the political party may be either express or implied, however, that the courts would insist on evidence which is positive, reliable and unequivocal. In G. Viswanathan v. speaker, T.N. Legislative Assembly, (1996) 2 SCC 353, the Apex Court further pointed out that the act of voluntarily giving up the membership of the political party may be either express or implied, however, that the courts would insist on evidence which is positive, reliable and unequivocal. The Division Bench of this court in Shajahan’s case 2000 (2) KLJ 451, interpreting the provision that arises for consideration in this case, took the view that the conduct of the person can be looked into to draw a clear inference as to whether he has voluntarily given up his membership in the party. 21. In the impugned Ext.P4 order, the writ petitioner in WP(C) 9896/2005, namely, the respondent in OP.152/2003 before the Election Commission, was held to have voluntarily given up his membership from the political party to which he belonged. This finding has been arrived at by noticing his conduct of having stood against the candidate set up by his political party for the post of Chairmanship, Sri.K.S. Shaji. It was also found that Sri. Kuttappan, who belonged to the rival coalition by name LDF, nominated the writ petitioner in WP(C) 9896/2005 as a candidate for the election. Ext.X1 whip issued by the LDF to vote in favour of the writ petitioner in W.P.(C) 996/2005 was also relied on against him. The Election Commission, from the aforesaid circumstances, found that he contested the election after assuring the support of the rival political coalition, namely, LDF and it could be appropriately inferred that he had voluntarily given up his membership of the political party to which he belonged. 22. The learned counsel for the writ petitioner in W.P.(C).No.9896/2005 urged that the said finding is contrary to law and wholly unreasonable, perverse and unavailable on the materials on record. It is further urged that the materials on record would show that even P.W.5 in Ext.P4 proceedings, the Secretary of the political party, had deposed that there were rival groups in the political party. Different meetings of two different groups of the political party were held, which led to the candidature of the aforesaid Sri. K.S. Shaji and the writ petitioner as the candidates for election to the post of Chairperson. Different meetings of two different groups of the political party were held, which led to the candidature of the aforesaid Sri. K.S. Shaji and the writ petitioner as the candidates for election to the post of Chairperson. It was also canvassed before me that the petitioner was not bound to attend the meeting convened on behalf of the District President of the political party since it was not one convened by a member of the party who was also a councilor of the Municipality. Further it was urged that the writ petitioner cannot be faulted for having received votes from any other political party or coalition since their voting is not one over which the writ petitioner could have any control. 23. Having bestowed anxious consideration to the materials on record on this issue, the view taken by the Election Commission in Ext.P4 that the writ petitioner had not only the support of the rival coalition, by name LDF, but he was also nominated by a person belonging to the rival coalition, LDF, cannot be found fault with. May be that volition of the members of the LDF coalition as regards casting their vote is beyond the petitioner’s reach, but it is the accepted fact that his candidature was on the nomination of a member belonging to the rival LDF coalition and that he had, of his volition contested on the basis of such nomination. A bounty may be held out, but to receive it is always subject to the volition of the taker. It is also a matter of record that the rival coalition had issued a whip to its members to cast vote in favour of the writ petitioner. The petitioner also has not apparently challenged the case of the second respondent that he had not been thereafter attending the meetings of the party to which he belonged. So much so, the finding of the Election Commission in Ext.P4 that the petitioners in W.P.(C).No.9896/2005 had voluntarily given up his membership of the political party to which he belonged, cannot be treated as unreasonable or perverse. The said findings are very much available on the materials on record and inferentially, they are appropriate. Such findings of the Election Commission stand and the challenge against the same in W.P.(C).No.9896/2005 fails. The said findings are very much available on the materials on record and inferentially, they are appropriate. Such findings of the Election Commission stand and the challenge against the same in W.P.(C).No.9896/2005 fails. In the result, i. W.P.(C).Nos.9900, 9903 and 9938 of 2005 are allowed quashing the impugned Ext.P4 common order, in so far as it allows OP Nos.156, 153 and 155 of 2003 (before the Election Commission). ii. W.P.(C).No.9896/2005 is partly allowed vacating the finding in Ext.P4 to the effect that the writ petitioner (respondent in O.P.No.152 of 2003 before the Election commission) had voted in the election of the Chairperson of the Municipality contrary to the direction issued by the political party to which he belonged. The declaration by the Election Commission as to his disqualification on ground that he voluntarily gave up his membership of the political party to which he belonged is affirmed. iii. The parties will bear their respective costs.