The High Court of Kerala dismissed a writ petition filed by a local body member against his disqualification for defection. The court declined to grant interim stay and noted that since elections were conducted in the resulting vacancy, the petition was dismissed.
The writ petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941
WP(C).No.6540 of 2019
PETITIONER/S:
CHIRAYAKKODU VIJAYAN, AGED 62 YEARS S/O.RAGHAVAN, ANOOP BHAVAN, AMBOORI, KUTTAMALA P.O., THIRUVANANTHAPURAM - 695 505, MEMBER, WARD NO.XI, AMBOORI GRAMA PANCHAYATH.
BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SRI.K.C.HARISH SRI.R.T.PRADEEP
RESPONDENT/S:
1 KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, THIRUVANANTHAPURAM - 695 033.
3 BIJU THANKAPPAN, S/O.R.THANKAPPAN, PURUTHIPARA PERUNTHOTTATHIL VEEDU, VAZHICHAL, KUTTAMALA P.O., THIRUVANANTHAPURAM DISTRICT, PIN 695 505, MEMBER, WARD NO.X, AMBOORI GRAMA PANCHAYATH.
BY ADVS. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM SRI.S.MOHAMMED AL RAFI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C). No. 6540 of 2019
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JUDGMENT
The petitioner, who was an elected member of Amboori
Grama Panchayat, who contested as a candidate of Indian National Congress, has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P11 order dated 27.02.2019 of the 1st respondent State Election Commission in O.P.No.27 of 2018.
“The petitioner, who is an elected member of Amboori Grama Panchayath, who won as a candidate sponsored by Indian National Congress, has filed this
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writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P11 order dated 27.02.2019 of the Kerala State Election Commission in O.P.No.27 of 2018, whereby that petition filed by the 3rd respondent stands allowed, declaring that the petitioner is disqualified for being a member of Amboori Grama Panchayath as provided by clause (a) of sub-section (1) of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. In Ext.P11 order, it is declared that the petitioner is disqualified from contesting as a candidate in an election to any local authorities for a period of six years from the date of that order, as provided by subsection (3) of Section 4 of the said Act.
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member of Amboori Grama Panchayath, pending disposal of this writ petition.
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Sri.B.Shaji and Smt.Anitha were elected as a President and Vice President, respectively. The members of Indian National Congress, including the petitioner herein, moved a no confidence motion against the President and Vice President, which was tabled for discussion on 26.05.2019. The DCC President, Thiruvananathapuram District, who was examined as PW3 issued whip to all the elected members of Indian National Congress directing them to attend the meeting and vote in favour of the motion. The case of the 3rd respondent was that, though the petitioner accepted the whip and was aware of the decision and the stand of his party in the non confidence motion, he chose to disobey the whip. He deliberately abstained from attending the meeting held on 26.05.2018. As there were no sufficient members to carry the motion, it was not carried. According to the 3rd respondent, who was examined as PW1, the petitioner colluded with the members of the rival political parties and willfully abstained from attending the meeting. The petitioner, thereby, betrayed his political party and disobeyed the whip and acted against the interest of his party and thereby committed defection.
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the whip issued to the petitioner. PW3 entrusted the whip to PW2, the Mandalam President, to serve the same to the members including the petitioner. The petitioner accepted the whip and put his signature with date on the copy of the whip acknowledging the receipt of the same. The copy of the whip containing that acknowledgment was marked through PW3, as Ext.X1. PW3 has deposed further that, the petitioner violated the whip and abstained from attending the meeting on 26.05.2018 to help LDF and thereby, acted against the interest of his political party.
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Ext.B1 discharge summary would normally be discharged on the next day itself and that, there was no abnormal siutation in the case of the petitioner herein. All the tests were negative and his condition was normal. From Ext.B1 and the evidence of RW2, the Election Commission came to the conclusion that the petitioner was not suffering from any serious illness, which disabled him from attending the meeting held on 26.05.2018.
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was no decision by the Parliamentary Committee as to the manner in which a member has to act in the no confidence motion and in the said circumstances, merely for the reason that the petitioner has violated the whip, it cannot be said that the petitioner has voluntarily given up his membership of the political party. The learned Standing Counsel for the State Election Commission and also the learned counsel for the 3rd respondent would point out that, the petitioner has no such case in Ext.P3 objection. He has also not raised any such issue during trial and that, the DCC President who was examined as PW3, has deposed that he has issued whip to all Congress members to vote in favour of the no confidence motion and that, the no confidence motion was moved based on the decision of the DCC.
KHC 964] where a member of a political party is aware of the decision taken by the political party, but had failed to act in accordance with the political directive, it would amount to voluntarily abandoning the membership of the political party and he would be disqualified under sub-section (1) of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.
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conclusion that the petitioner herein has committed defection and he has voluntarily given up his membership of the political party which elected him as a member, as provided by clause (a) of sub-section (1) of Section 3 of the Act and therefore, he became subject to qualification for being a member of Amboori Grama Panchayat.
The petitioner has not made out a prima facie case for grant the interim relief sought for in this writ petition. In such circumstances, the interim relief sought for is declined.
Post on 28.05.2019 for further consideration.”
the learned counsel for the petitioner would submit that since
the State Election Commission has already conducted election in the vacancy occurred on account of Ext.P11 order, the petitioner do not want to prosecute this writ petition further.
Recording the above submission made by the learned counsel for the petitioner, this writ petition is dismissed.
Sd/-
ANIL K.NARENDRAN JUDGE
das
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APPENDIX
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF THE ACKNOWLEDGMENT OF WHIP DATED 21/5/2018 SERVED ON PETITIONER. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE O.P.NO.27/2018 DATED 4/6/2018 BY 3RD RESPONDENT BEFORE 1ST RESPONDENT. |
| EXHIBIT P3 | TRUE COPY OF THE OBJECTION DATED 18/7/2018 IN O.P.NO.27/2018 BY PETITIONER. |
| EXHIBIT P4 | TRUE COPY OF THE WHIP PRODUCED AS X1 WHICH PURPORTED TO HAVE CONTAINED THE SIGNATURE PETITIONER DATED 21/5/2018. |
| EXHIBIT P5 | TRUE COPY OF THE DISCHARGE SUMMARY DATED 27/5/2018. |
| EXHIBIT P6 | TRUE COPY OF AFFIDAVIT SWORN BY 3RD RESPONDENT DATED 30/7/2018 IN LIEU OF EXAMIANTION IN CHIEF. |
| EXHIBIT P7 | TRUE COPY OF THE CROSS-EXAMINATION OF 3RD RESPONDENT DATE 17/8/2018. |
| EXHIBIT P8 | TRUE COPY OF THE CHIEF EXAMINATION AND CROSS-EXAMINATION OF PW3 DATED 28/9/2018. |
| EXHIBIT P9 | TRUE COPY OF THE AFFIDAVIT SWORN BY PETITIONER DATED 23/11/2018 IN LIEU OF EXAMINATION IN CHIEF. |
| EXHIBIT P10 | TRUE COPY OF THE CROSS-EXAMINATION DATED 23/11/2018 OF PETITIONER. |
| EXHIBIT P11 | TRUE COPY OF THE ORDER DATED 27/2/2019 IN O.P.NO.27/2018 BY 1ST RESPONDENT. |
RESPONDENT'S/S EXHIBITS:
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EXHIBIT -R3(A) TRUE COPY OF THE DEPOSITION OF CARDIOLOGIST, NIMS HOSPITAL, NEYYATTINKARA.
3 issues framed by the court
Whether the petitioner committed defection by disobeying the party whip during a no-confidence motion.
Whether the petitioner has made out a prima facie case for interim relief suspending the disqualification order.
Whether to allow the writ petition seeking quashing of the disqualification order.
Colour shows how this judgement treated each authority
Eruthavoor Chandran and another v. Kerala State Election Commission and othersReferred¶53
Eruthavoor Chandran and another v. Kerala State Election Commission and others [2018 (5) KHC 964]
2 provisions across 1 enactments
Chirayakkodu Vijayan
Kerala State Election Commission
Secretary, Amboori Grama Panchayath
Biju Thankappan
Anil K.Narendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
