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2009 DIGILAW 98 (KER)

Nazeerkhan S v. Kerala State Election Commission

2009-02-03

JACOB BENJAMIN KOSHY, V.GIRI

body2009
JUDGMENT V. Giri, J. 1. The petitioner, in WP (C) No. 3951/08, which was dismissed by the learned Single Judge as per the impugned judgment dated 15/12/2008, is the appellant herein. The petitioner had challenged Ext. P6 order of the Kerala State Election Commission, declaring that the petitioner has rendered himself disqualified by the Kerala Local Authorities (Prohibition of Defection) Act, 1999 to continue as a member of the panchayat on the ground that he had voluntarily given up his membership of the party on whose ticket he was elected as the member of the panchayat. Learned Single Judge declined to interfere with Ext. P6 order and dismissed the writ petition. The petitioner has come up in appeal against the said judgment. 2. The alleged act of disqualification insofar as the writ petitioner is concerned emanated from the election to the post of Vice President of the Thrikadavoor Grama Panchayat held on 17/07/2006. The case of the petitioner before the Election Commission, 2nd respondent herein was that the President of the Congress Committee had issued a whip to all the members of the panchayat belonging to the Congress to cast their votes in favour of one Kochukuttan Piilai, a Congress (M) candidate in the elections held on 17/07/2006. Sri. Kochukuttan Piilai secured 9 votes. The allegation was that the petitioner, who was also a member owing allegiance to the Congress (I) party, deliberately disobeyed the whip and had proceeded to stand for the election himself. He managed to secure 12 votes and it turned out that 10 votes were cast by members belonging to LDF, one was by an independent candidate and the remaining one was cast by the writ petitioner himself. It is on this premise that Ext. P1 petition was filed before the original 2nd respondent, the State Election Commission invoking the powers of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. 3. It was contended that the writ petitioner had obviously been elected only on the basis of the votes cast by the LDF and not the vote cast by the officially sponsored candidate; the writ petitioner has conducted himself in such a way that he should be treated as having voluntarily given up the membership of the party on whose ticket he was elected as the member of the panchayat. In Ext. In Ext. P1, it was alleged that the writ petitioner had disobeyed the whip issued by the District President of the Congress Committee. 4. The petitioner appeared before the Election Commission and filed objections. The following issues were formulated by the State Election Commission: "(1) Whether the respondent has violated the whip issued by a competent person to vote for the official candidate and (2) Whether he can be disqualified on the ground of voluntarily giving up the membership of the party." 5. Oral evidence was tendered by both sides. It was found by the State Election Commission that PW 3, the President of the District Congress Committee (I), who was not a member of the Thrikadavoor Grama Panchayat was not competent to issue a whip to the writ petitioner. Therefore, the petitioner cannot be found fault for violating the duly issued whip. 6. On the second aspect, the State Election Commission came to the conclusion that the evidence on record demonstrates beyond any shadow of doubt that the petitioner had contested for the post of Vice President, against the wishes of the party on whose ticket he was elected as the member of the panchayat. Sri. Kochukattan Pillai, the official candidate PW 2 was proposed and seconded by the members belonging to Congress (I). He obtained 9 votes as against the 12 votes cast, it turned out that out of the 12 votes received by him, 10 were cast by LDF, thereby indicating that en-bloc, the said votes were cast in favour of the writ petitioner. It is, therefore that the petitioner had acted against the interest of the party on whose ticket he was elected as the member of the panchayat and this conduct, according to the Election Commission, amounted to voluntarily giving up or abandoning the membership of the party. It was accordingly he was disqualified. 7. Learned Single Judge concurred with the findings of the Election Commission.The contention that the Election Commission had acted illegally in raising an issue as to whether the writ petitioner had voluntarily given up his membership of the party was negatived. The learned Judge held that strict law of pleadings as emanating from the CPC will not ipso facto apply to the proceedings under the Act. The learned Judge held that strict law of pleadings as emanating from the CPC will not ipso facto apply to the proceedings under the Act. There was a specific allegation that the petitioner had acted against the interest of the party and his conduct was such as to disqualify him under the Act. Evidence was let in this regard. The respondent before the Election Commission, the petitioner had also let in evidence to substantiate his contention that he continued to be a member of the party inspite of the fact that he acted against the wishes of the party and in spite of having been elected against the official candidate of the Congress party. If that be so, the Election Commission was perfectly justified in raising an issue as to whether the petitioner had voluntarily given up his membership of the party, it was found. 8. On merits, the learned Single Judge affirmed the findings of the Election Commission. The learned Judge had referred to the decision of the Supreme Court in Ravi S. Naik v. Union of India, AIR 1994 SC 15581 and Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, 2004 (8) SCC 7472 to come to the conclusion that the petitioner had voluntarily given up his membership and that an inference in this regard can be drawn against a person from his conduct and that voluntary abandonment of membership is not confined to cases of resignation. On an elaborate consideration of the issue, the learned Judge affirmed Ext. P6 and dismissed the writ petition. This is appealed against. 9. We heard counsel on both sides.10. Learned Senior Counsel Mr. M. K. Damodaran contended that issue No. 2, ought not to have been formulated by the Commission. He contended that the averments in Ext. P1 petition do not contain a specific contention that the petitioner had voluntarily given up his membership of the party. Therefore, an issue ought not to have been raised in this regard. 11. We are unable to accept this submission. A reading of Ext. P1 in its entirety will show that the facts necessary to make out a case of the petitioner being rendered disqualified under the Act for infraction of Section 3(1 )(a) of the Act has been made out. It is significant that both parties have let in evidence, which clearly was aimed at substantiating their respective contentions. A reading of Ext. P1 in its entirety will show that the facts necessary to make out a case of the petitioner being rendered disqualified under the Act for infraction of Section 3(1 )(a) of the Act has been made out. It is significant that both parties have let in evidence, which clearly was aimed at substantiating their respective contentions. The Election Petitioner wanted to demonstrate that the conduct of the writ petitioners was such that it is clearly inconsistent with him retaining the membership of the party on whose ticket he was elected as the member of the panchayat. The conduct was consistent with him having voluntarily given up his membership of the party. Significantly, the petitioner let in evidence to substantiate his contention that he continued to be a member of the Congress party. Reliance placed by him on his response to two whips which were issued subsequent to the date of the election was clearly intended to lent credence to his contention that he continued to be a member of the Congress party. The learned Single Judge has considered this contention in paragraph 24 of the judgment as follows: "(1) Counsel contended that even his party did not treat him as having given up hismembership and relies on Exts. P5 and P7 whips issued on 16/08/2006 and 02/08/2006,which is subsequent to 17/07/2006 when the election in question was held. The questionof disqualification is a matter to be decided with reference to his conduct on 17/07/2006and therefore even if he obeyed the subsequent whips, it is immaterial. nsofar as Ext. P5whip is concerned, as is evident from Ext. R2(a) produced by the 2nd respondent, it is obvious that he disobeyed that whip also. Insofar as Ext. P7 is concerned, the ingenuity of the petitioner is evident from his conduct on that occasion also in the meeting, even if he had not voted against the whip, still the no-confidence motion would have been carried by the majority. This conclusion is irresistible from the fact that the motion sponsored by the LDF was carried by 11 votes against 9. It was therefore that after contesting against the patty's official candidate in the election, petitioner had chosen to obey the subsequently given Ext. P7 whip. Therefore Exts. P5 and P7 do not improve the case of the petitioner in any manner." 12. It was therefore that after contesting against the patty's official candidate in the election, petitioner had chosen to obey the subsequently given Ext. P7 whip. Therefore Exts. P5 and P7 do not improve the case of the petitioner in any manner." 12. We are in complete agreement with the said finding of the learned Single Judge. But, apart from the same, the fact that the petitioner sought to rely on Exts. P5 and P7 whips is clearly indicative of the position that the writ petitioner knew the act of disqualification which was alleged against him. Therefore, he took upon himself the burden to disprove the contention that he had voluntarily given up his membership from the party. In other words, he contested the proceedings before the Election Commission with both eyes open and was perfectly aware of the burden which he was required to discharge in defending his case. 13. We are also in agreement with the reasoning and findings of the learned Single Judge that the very act by which the writ petitioner had stood for election to the post of Vice President of the panchayat against the official Congress (I) candidate and that he had been elected on the basis of the votes cast in his favour en-bloc by the opposition LDF is clearly proof of the petitioner having acted in such a manner as to render himself disqualified under the provisions of the Act. We are also in agreement with the findings of the learned Single Judge that a Court exercising power under Article 226 of the Constitution of India in proceedings, where in a challenge is mounted a challenge against the order passed by the State Election Commission is only expected to act in judicial review of the order impugned and not approach the same as an Appellate Court. 14. For all these reasons, we find that the appeal is bereft of merit and accordingly, the same is dismissed.