Writ petition challenging State Election Commission order disqualifying a Panchayat member under the Kerala anti-defection law for voting as an LDF candidate against a Congress whip in a President election.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 22ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945
WP(C) NO. 6870 OF 2023
PETITIONER:
DEVASIA DEVASIA,
AGED 66 YEARS, S/O.DEVASIA,
PARAMNILATHU VEEDU, KARIMANNOOR P.O., IDUKKI
DISTRICT, PIN – 685 581.
BY ADVS.
T.A.UNNIKRISHNAN
K.K.AKHIL
T. SREELAKSHMI UNNIKRISHNAN
RESPONDENTS:
1SIBI KUZHIKATTU,
S/O.MATHEW, KUZHIKATTU, KARIMANNOOR P.O, IDUKKI,
PIN – 685 581.
2THE KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM,
PIN – 695 033.
BY ADVS.
K.C.VINCENT (FOR R1)
DEEPU LAL MOHAN, SC, STATE ELECTION
COMMISSION, KERALA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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‘C.R’
J U D G M E N T
The petitioner has approached this Court challenging
Ext.P1 order of the Kerala State Election Commission in O.P.No.76 of 2018.
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which, the candidates of the UDF and the LDF got seven votes each. Since the votes obtained by candidates of both fronts were seven each, the President was thereafter declared elected by draw of lots and the petitioner came to be the elected President of the Panchayat.
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State Election Commission, the petitioner was not permitted to continue as a member, prompting the petitioner to approach this Court by filing the above writ petition.
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facts and circumstances of this case. It is contended that the petitioner had not voluntarily given up his membership of the Indian National Congress (part of the UDF) at the relevant time. It is submitted that no proper whip or instruction was issued by the Indian National Congress regarding the election to the position of President of the Grama Panchayat. It is submitted that in such circumstances, the finding of the Election Commission that the petitioner had attracted the disqualification in Section 3(1)(a) of the 1999 Act is not sustainable in law. It is further contended that even if Ext.P1 order of the Kerala State Election Commission has to be upheld, the subsequent election of the petitioner as a member of the Panchayat in the election held in the month of December 2020 and his continuance as a member on the basis of such election is not affected by Ext.P1 order, as Ext.P1 order was issued only in January 2023. It is submitted that in such circumstances, at the time when the petitioner was elected as a member in the subsequent election held in
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December 2020, the petitioner had attracted no disqualification. It is submitted that going by the decision of the Division Bench of this Court in Pavithran N.K. and Another v. M. Nandakumar and Another; 2015 KHC 932, disqualification will run only from the date on which the order is issued by the State Election Commission. In other words, it is submitted that on the date of the election of the petitioner to the subsequent committee constituted after the election held in the month of December, 2020, the petitioner was not disqualified to continue as a member. It is submitted that none of the provisions of the 1999 Act or the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the ‘1994 Act’) indicate that the petitioner is disqualified from continuing as a member of the Panchayat.
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the grant of any relief to the petitioner. It is submitted that a reading of Ext.P1 order will indicate that there were sufficient materials before the Election Commission to hold that the petitioner had attracted the disqualification under Section 3(1)(a) of the 1999 Act. It is submitted that the number of elected members to the committee of the Karimannoor Grama Panchayat is fourteen (14). It is submitted that in the election held in the month of November 2015, eight elected members, including the petitioner, belonged to the UDF and six members belonged to the LDF. It is submitted that in the election held to the post of President in the month of June 2018, the petitioner became a candidate of the LDF, resulting in a situation where the candidates of both the LDF and the UDF won seven votes each. It is submitted that thereafter, the petitioner was declared to be the President by draw of lots. It is submitted that the petitioner had clearly given up his membership of the Indian National Congress and had also disobeyed an instruction issued by the party representing
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which he was elected as a member in the 2015 election. Therefore, the petitioner had clearly attracted the disqualification under both limbs of Section 3(1)(a) of the 1999 Act. It is submitted that this Court, in Jessie Raju v. Communist Party of India, Ekm and Another; 2017 (3) KHC 697, has clearly held that even in a case like the present where the petitioner had successfully contested the subsequent election, the moment the Election Commission had declared him disqualified in terms of Section 3(1)(a) of the 1999 Act, the petitioner cannot continue as a member, though the disqualification will operate only from the date of the order of the said Election Commission as held in Pavithran N.K. (Supra).
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that the Election Commission had considered the issue as to whether the petitioner had attracted disqualification under Section 3(1)(a) of the 1999 Act in a proper manner. It is clear from a reading of Ext.P1 order that in respect of the election to the post of President held in the month of June 2018, Exhibit-A2 whip had been issued by the authorised representative of the Indian National Congress. The issuance of the whip was proved through PWs 2, 3 and 4. PW2, the District President of the Congress Party, who issued the whip, has also been examined. Therefore, it is clear that in the election held for the post of President of the Grama Panchayat in the month of June 2018, there was a whip/instruction issued by the political party to which the petitioner belonged. The facts also show that the petitioner violated the whip by offering to be a candidate of the LDF and getting elected as the President of the Panchayat by drawing lots in the manner indicated above. Thus, the Election Commission was right in holding that the petitioner had voluntarily given up the membership of the
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Indian National Congress by his act of being a candidate of the LDF in the election to the post of President of the Grama Panchayat held in the month of June 2018. He had also clearly violated the whip. Therefore, I find no reason whatsoever to interfere with the findings of the Election Commission in Ext.P1.
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in Pavithran N.K. (Supra), that the disqualification is only from the date of the order of the State Election Commission. In Jessie Raju (Supra), a learned Single Judge of this Court held as follows:
“ xxxx xxxx xxxx
There are two consequences. One, the member would cease to be a member from the date of decision and would be disqualified from contesting an election to any local authority for six years. The petitioner was a member of the local authority when the decision came and that alone attracts the disqualification from being continued as a member. By the mere fortuitous circumstance that before a decision came an election was conducted would not absolve the member of the rigour of disqualification, which again is a corollary to the principle laid down by the Division Bench in Pavithran, that even if six years have elapsed from the time of the alleged act of disqualification there would be a further disqualification for six years from the date of decision. Any other interpretation would do violence to the avowed intention of the Legislature and the plain language used in the statute.
xxxx xxxx xxxx”
I am in respectful agreement with the above view. There is
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yet another reason why the contention of the learned counsel for the petitioner cannot be accepted. Section 2(xxiv) of the 1994 Act defines a ‘member’ to be a member of a Panchayat at any level. Section 34 of the 1994 Act deals with the disqualification of candidates. Section 35 of the 1994 Act deals with the disqualifications of members. Section 35(1)(n) of the 1994 Act reads as follows:
“ 35 . Disqualifications of members . - (1) Subject to the provisions of section 36, or section 102 a member shall cease to hold office as such, if he -
xxxx xxxx xxxx
(n) has been disqualified under the provisions of Kerala Local Authorities (Prohibition of Defection) Act, 1999;”
It is, therefore, clear that the moment a member attracts a disqualification in terms of the provisions contained in the 1999 Act, he is disqualified from continuing as a member, whether it be on the committee in respect of which the order of the Election Commission was issued under the provisions of the 1999 Act or in respect of any other
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committee to which he had been elected in any subsequent election. As held by this Court in Jessie Raju (Supra), any other interpretation would be doing violence to the provisions of the 1999 Act, r/w the provisions of Section 2 (xxiv) and Section 35 of the 1994 Act. The position is further clear when one refers to Section 36 of the 1994 Act, which makes it clear that except in a case covered by clause (n) of Section 35, any disqualification after being elected as a member must be determined by the State Election Commission. In the case of disqualification under clause (n) of Section 35 of the 1994 Act, such disqualification is already on the basis of the orders issued by the State Election Commission. This is the reason why Section 36 of the 1994 Act declares that in any case other than that covered by clause (n) of Section 35 of the 1994 Act, the issue regarding any disqualification attracted while a person is a member of the Panchayat Committee shall be determined by the State Election Commission. In that view of the matter, the petitioner is not entitled to any
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relief in this writ petition. Writ petition fails, and it is
accordingly dismissed.
Sd/-
GOPINATH P.
JUDGE
ats
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APPENDIX OF WP(C) 6870/2023
PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF THE ORDER DATED 17/1/2023 IN
O.P.NO 76/2018 ISSUED BY THE 2ND RESPONDENT
Exhibit P2TRUE COPY OF THE PETITION IN O.P NO. 76/18
FILED BY THE 1ST RESPONDENT BEFORE THE 2ND
RESPONDENT, DATED 20/7/2018
Exhibit P3TRUE COPY OF THE OBJECTION DATED 12/10/2018
FILED BY THE PETITIONER IN O.P NO. 76/18
Exhibit P4TRUE COPY OF THE DEPOSITION (CHIEF
EXAMINATION AND CROSS EXAMINATION) OF PW2
DATED 13/2/2019
Colour shows how this judgement treated each authority
Pavithran N.K. and Another v. M. Nandakumar and AnotherRelied on¶7
2015 KHC 932
Jessie Raju v. Communist Party of India, Ekm and AnotherFollowed¶7
2017 (3) KHC 697
5 provisions across 2 enactments
Devasia Devasia
Sibi Kuzhikattu
The Kerala State Election Commission
GOPINATH P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court