Writ petition challenging disqualification of a Panchayat member for alleged violation of party whip dismissed as Election Commission lacked cogent evidence regarding whip service and member knowledge.
The impugned order of disqualification is set aside.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
WP(C).No.16461 OF 2020(G)
PETITIONER:
THOMASKUTTY KURIAN, AGED 55 YEARS, S/O. KURIAN, MANJUNATTU HOUSE, KARIMKUNNAM P.O. IDUKKI DISTRICT, MEMBER, WARD NO. 10, KARIMKUNNAM GRAMA PANCHAYATH.
BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.K.AKHIL
RESPONDENTS:
2 DILEEP KUMAR M.S, S/O. SASEENDRAN, MADAKKATHARA HOUSE, THATTARATHATTA P.O. KARIMKUNNAM, IDUKKI DISTRICT, MEMBER, WARD NO.5, KARIMKUNNAM GRAMA PANCHAYAT 685 586.
R2 BY ADV. SRI.M.NARENDRA KUMAR
MURALI PURUSHOTHAMAN SC KSEC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16461 OF 2020(G)
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JUDGMENT
Dated this the 18th day of November 2020
This writ petition is filed challenging the decision of the
Election Commission to disqualify the petitioner as a member of Karimkunnam Grama Panchayat.
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WP(C).No.16461 OF 2020(G)
the Chairman of the Welfare Standing Committee, violating the whip of the DCC President. The only question that has to be considered is that whether there was a valid whip. The petitioner denied the service of whip. When the service of whip was denied, it was the duty of the 2nd respondent to prove that the service was effected in a manner prescribed in law. There was no service of whip on the Secretary of the local authority. Therefore, there is no valid service of whip to attract the 2nd limb of Sec.3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act.
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WP(C).No.16461 OF 2020(G)
respondent is Annexure A8, the copy of the minutes of the Election held on 17.09.2018. That, according to the 2nd respondent, would show that a whip was read over in the meeting. Except these evidence there was nothing on record to the Election Commission to hold that the petitioner was aware of any decision of the party nominating the 2nd respondent. The oral evidence proving the service of whip cannot be relied to disqualify a member under the first limb of Sec.3(1)(a) of the Act. There must be some direct or cogent evidence to show that the petitioner was aware of any decision of the party to attract first limb of Sec.3(1)(a) of the Act.
could not have ordered disqualification of the petitioner.
This writ petition is allowed. The impugned order is set
aside.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
PR
WP(C).No.16461 OF 2020(G)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 17/7/2020 IN O.P. NO. 109/2018 OF STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF MEMORANDUM OF PETITION IN O.P. NO. 109/2018 DATED 11/10/2018. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. NO. 109/2018 DATED 5/2/2019.
EXHIBIT P4 TRUE COPY OF WHIP DATED 13/9/19 ALLEGED TO HAVE BEEN ISSUED TO THE PETITIONER. EXHIBIT P5 TRUE COPY OF CHIEF AFFIDAVIT ALONG WITH DEPOSITION IN CROSS EXAMINATION OF 2ND RESPONDENT BEFORE ELECTION COMMISSION. EXHIBIT P6 TRUE COPY OF THE DEPOSITION OF PW2, IBRAHIM KUTTY KALLAR, DATED 21/8/2019. EXHIBIT P7 TRUE COPY OF THE CHIEF AFFIDAVIT OF PETITIONER HEREIN ALONG WITH DEPOSITION IN CROSS EXAMINATION DATED 15/11/2019. EXHIBIT P8 TRUE COPY OF THE WITNESS LIST SUBMITTED BY THE PETITIONER HEREIN BEFORE THE ELECTION COMMISSION DATED NIL.
EXHIBIT P9 TRUE COPY OF DEPOSITION OF PW3 IN OP NO.109/2018 OF THE KERALA STATE ELECTION COMMISSION
WP(C).No.16461 OF 2020(G)
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EXHIBIT P10 TRUE COPY OF DEPOSITION OF PW4 IN OP.NO.109/2018 OF THE KERALA STATE ELECTION COMMISSION
EXHIBIT P11 TRUE COPY OF THE EXHIBITS B1(A) MARKED BEFORE THE STATE ELECTION COMMISSION
2 issues framed by the court
Whether the Election Commission had sufficient evidence to disqualify the petitioner for violating party whip.
Whether mere oral evidence regarding service of a whip is sufficient to attract disqualification provisions.
THOMASKUTTY KURIAN
THE KERALA STATE ELECTION COMMISSION
DILEEP KUMAR M.S
A.MUHAAMED MUSTAQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
