Allowed

Jolly Pathrose.L v. Thekerala State Election Commission

Kerala HC17 Nov 2020WP(C)/6536/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the disqualification of the petitioner from the Pothencode Block Panchayat and from contesting elections. The court quashed the order, citing lack of whip service to the Secretary and absence of proof regarding the petitioner's knowledge or wilful violation of party directives.

What did the court decide?

The impugned order disqualifying the petitioner and debarring her from contesting elections was set aside. No costs.

Jolly Pathrose.L Vs Thekerala State Election… — Writ and Judicial Review | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

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WP(C).No.6536 OF 2018(N)

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PETITIONER/S:

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JOLLY PATHROSE L., AGED 49, W/O.JAYAPALAN, J.J.COTTAGE, THUMBA, PALLITHURA.P.O, THIRUVANANTHAPURAM-695586.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA

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RESPONDENT/S:

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1 THE KERALA STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM,THIRUVANANTHAPURAM-695033, REPRESENTED BY COMMISSIONER.

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2 JALAJA KUMARI, AGED 50, W/O.KUTTAN NAIR, JANANI(PUTHUVEL VEEDU), KEEZHAROOR.P.O, ANDOORKONAM, THIRUVANANTHAPURAM-698554.

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R2 BY ADV. SRI.JACOB E SIMON

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BY SRI.MURALI PURUSHOTHAMAN, SC, KSEC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-112020, THE COURT ON 17-11-2020 DELIVERED THE FOLLOWING:

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WP(C).No.6536/2018 2

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JUDGMENT

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Dated this the 17th day of November 2020

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This writ petition was filed challenging a decision of the Kerala State Election Commission disqualifying the petitioner to continue as a member of Pothencode Block Panchayat and also debarring her from contesting as a candidate in an election to any local authorities for a period of six years from the date of order.

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The petitioner-Jolly Pathrose and the second respondent Jalaja Kumari elected as members of Pothencode Block Panchayat based on the election held in November, 2015. Both of them contested as a nominee of Indian National Congress(INC). INC got a majority. Based on the majority, it formed Panchayat Board. Jalaja Kumari was elected as the president of the Board. A no-confidence motion was moved against the President and Vice President on 07.11.2016. A whip was issued. It was alleged that Jolly Pathrose voted in favour of the no-confidence motion by colluding with the rival left democratic front.

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WP(C).No.6536/2018 3

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Jolly Pathrose denied the receipt of the whip.

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Jolly Pathrose also contended that no whip was read out in the meeting convened for the no-confidence motion.

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There is no proof of service of the whip in the manner prescribed under law. Jalaja Kumari produced the whip sent by post and that are returned postal articles. There is no proof of service of the whip on the Secretary of the Local Self Government Institution concerned. In the light of the judgment of this Court in George Elamplakkadu @ Vakkachan Powathil v. A.V. Mathew @ Samkutty Vettupalam and Others [2020 (5) KHC 297] , in the absence of service of the whip to the Secretary, no petition on the ground of the second limb of Section 3(1) (a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the 'Defection Act') is maintainable. The second limb refers to disqualification

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for defying the whip. Therefore, the only question survives whether Jolly Pathrose had knowledge of the party directives not to support the no-confidence motion.

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WP(C).No.6536/2018 4

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If there is no knowledge attributable by way of whip, there must be some positive evidence to show that a member has violated the directives of the political party to attract the first limb of Section 3(1)(a) of the Defection Act. The first limb of Section 3(1)(a) would be applicable for disqualifying the member if he or she voluntarily relinquished the membership of the party. That presupposes there must be the wilful act to disobey the party directives.

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It appears that there is some internal differences within the Congress party. Any internal disputes in relation to the local authority cannot be reckoned for disqualification unless a valid decision is taken by the political party for compliance by its party members. It may be true that the petitioner's action siding with the opposite party dented the image of her own party. The first limb under Section 3(1)(a) would be attracted only when there is an intentional disobedience on the part of the party member to any of the directives issued by the party. There is no proof of any meeting not to support

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WP(C).No.6536/2018 5

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the no-confidence motion, nor there was any proof, Jolly Pathrose attending any such meeting. The Election Commission proceeded the whip was valid without noting that there is no service of the whip of the Secretary of the Local Authority. It appears that subsequently difference within the party also have been sorted out. In such circumstances, I am of the view that the impugned order has to be set aside. Accordingly, it is set aside. No costs.

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The writ petition is allowed.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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WP(C).No.6536/2018 6

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PETITION IN O.P.NO.16 OF 2016 ON THE FILES OF KERALA STATE ELECTION COMMISSION. EXHIBIT P2 TRUE COPY OF OBJECTION STATEMENT IN O.P.NO.16 OF 2016 ON THE FILES OF KERALA STATE ELECTION COMMISSION.

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EXHIBIT P3 TRUE COPY OF ORDER DATED 30.01.2018 IN O.P.NO.16 OF 2016 PASSED BY THE KERALA STATE ELECTION COMMISSION.

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RESPONDENTS EXHIBITS:NIL.

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//TRUE COPY//

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P.A.TO JUDGE

Jolly Pathrose.L v. Thekerala State Election Commission

Case brief

What is this about?

What did the court decide?

Jolly Pathrose.L v. Thekerala State Election Commission

Case brief

What is this about?

What did the court decide?

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