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2020 DIGILAW 855 (KER)

D. Prasannakumary v. G. R. Shibu

2020-10-13

A.MUHAMED MUSTAQUE

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JUDGMENT : A. MUHAMED MUSTAQUE, J. 1. The writ petitioner, Smt. D. Prasannakumary was elected as a member of Kanjiramkulam Grama Panchayath for the tenure 2010-2015 as an independent member. The term of the Panchayath committee expired on 31.10.2015. 2. Before the expiry of the term of the Panchayath committee, the general election to all local bodies was announced. The petitioner submitted her nomination on 14.10.2015 to contest on the symbol of Indian National Congress. Under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short the ‘Act’) if an independent member joins any political party, such a member is deemed to be disqualified on the ground of defection as referable under Section 3(1)(c) of the Act. The statutory provision under Section 3(1)(c) is reproduced herewith for reference: “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.” 3. G.R. Shibu, the first respondent herein filed an election petition before the Kerala State Election Commission on 14.12.2015 to declare that the petitioner D. Prasannakumary acquired disqualification by defection by joining a political party while functioning as an independent member without any affiliation. The cause of action alleged is based on submission of her nomination on 14.10.2015 and acceptance of such nomination on 17.10.2015. Under law, 30 days time is prescribed for filing a petition, that means, the cause of action would run from 17.10.2015. Admittedly, the petition for a declaration to disqualify the writ petitioner was filed only on 14.12.2015. The Election Commission condoned the delay by a preliminary order dated 26.7.2016. The Election Commission also allowed the petition by order dated 03.11.2017 holding that the petitioner committed defection as provided under Section 3(1)(c) of the Act. 4. The learned Senior Counsel appearing for the petitioner argued that G.R. Shibu, the first respondent herein, has no locus-standi to move the petition as on that date. The learned Senior Counsel pointed out to the restricted right conferred on the political party and the member of the Local Self Government Institutions as referable under Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (for short the ‘Rules’). The learned Senior Counsel pointed out to the restricted right conferred on the political party and the member of the Local Self Government Institutions as referable under Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (for short the ‘Rules’). According to the learned Senior Counsel, as on the date of filing the petition, the first respondent ceased to be a member of the Local Self Government Institutions for the period during which the alleged disqualification accrued on the membership of the writ petitioner, D. Prasannakumary. 5. The learned counsel for the first respondent submits that the delay was condoned. Therefore, the right to sue would relate back to the date on which the cause of action arose, i.e. 17.10.2015. The learned counsel further pointed out that the term of the committee expired only on 31.10.2015. It was further argued that the writ petitioner never raised an objection on locus-standi before the Election Commission. The learned Standing Counsel for the Election Commission made available the records and defended the order passed by the Election Commission. 6. On the teeth of Section 3(1)(c) of the Act, I am of the view that any action on the part of an independent member joining any political party would acquire disqualification. What is interdicted is, any form of defection before the term of the committee is over, even if such defection is relatable to a future election. The petitioner decided to contest the next election as a candidate of the Indian National Congress. That was before the expiry of her term as an independent member. That inevitably leads to disqualification as referable under Section 3(1)(c) of the Act. 7. The locus-standi was not considered by the Election Commission. In the counter statement itself, the petitioner had contended that the first respondent has no locus-standi to file the petition. It is specifically contended that the first respondent ceased to be a member of the Panchayath on 14.12.2015. The omission on the part of the Election Commission cannot prevent this Court from deciding this point in exercising its power of judicial review as the same forms part of the records. It is specifically contended that the first respondent ceased to be a member of the Panchayath on 14.12.2015. The omission on the part of the Election Commission cannot prevent this Court from deciding this point in exercising its power of judicial review as the same forms part of the records. When there is a failure to exercise jurisdiction on a mixed question of facts and law and when there is no dispute on the facts related to the question of law, this Court can very well decide such question by invoking its power of judicial review. In view of the undisputed fact that as on the date of filing, the first respondent was not a member of the committee for the period related to the disqualification of the petitioner, this Court has to consider the same in this writ petition. 8. Under Rule 4A of the Rules, a political party or a member of the Local Self Government Institutions alone can submit a petition for declaring a member as disqualified on the ground of defection. Under sub-rule (2) of Rule 4A, such an application has to be filed within thirty days from the date of deemed disqualification of the member. 9. Under Rule 4A of the Rules, a member of the Local Self Government Institutions has been conferred with a right to move a petition for disqualification of other members, that means, it must be relatable to the tenure during which he or she officiated as a member. As on the date of 14.12.2015, the first respondent was not a member of the Local Self Government Institutions. The locus-standi to file the petition is based on the right conferred under Rule 4A. It does not confer any right to a previous or former member. Therefore, one must have the right to move the petition as on the date of its institution. 10. The argument of the learned counsel for the first respondent is that the deemed disqualification arose on 17.10.2015 and therefore, the cause of action has to be reckoned as arose on 17.10.2015. It is argued that the condonation of delay relates back to 17.10.2015. According to the learned counsel, the locus-standi has to be considered with reference to the date of cause of action and not with reference to the date of institution of the petition. It is argued that the condonation of delay relates back to 17.10.2015. According to the learned counsel, the locus-standi has to be considered with reference to the date of cause of action and not with reference to the date of institution of the petition. It is submitted that since the first respondent had locus-standi as on 17.10.2015, the petition was perfectly maintainable. 11. The law on disqualification on the ground of defection is a statutory creation. The statute only intended to confer the right on a few to file the petition. It is not available to a person, who voted in the election. It is open for the political party or other members to condone the action of defection. Unless it is questioned in an appropriate manner, a member will not be declared as disqualified. 12. A political party may be able to institute a petition to disqualify a member at any time even after the expiry of the term of the committee. However, a member cannot institute a petition for disqualification after the expiry of the period of his membership. The moment the term is over, the petitioner ceased to be identified as a member for the term during which the alleged disqualification accrued. 13. The date of institution of the petition is decisive as to confer jurisdiction on the Election Commission. If the petitioner before the Election Commission is not a member, the Election Commission has no jurisdiction to receive such petition. In this case, the Election Commission received a petition from a person who was not a member. This was entertained by the Election Commission without any jurisdiction. The date of deemed disqualification referable under Rule 4A(2) cannot confer locus-standi to the person who ceased to be a member at the time of the institution of the petition. The right to sue is conferred based on the status and not based on the cause of action available. The institutional right to sue has to be determined with reference to the status and that cannot be created on the choice of a person retroactively to operate it from the date of cause of action. As observed earlier, the law conferred only to a few, the right to file the petition, and it must be based on the status as a member or by a political party. As observed earlier, the law conferred only to a few, the right to file the petition, and it must be based on the status as a member or by a political party. As on the date of filing the petition, if such status is not available, the Election Commission has no jurisdiction to entertain such petition. 14. In the result, the writ petition is allowed. The impugned order is set aside as the same was entertained by the Election Commission without any jurisdiction or authority.