IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5469 of 2010(G)
1. OMANA CHELLAPPAN
... Petitioner
Vs
1. THE KERALA STATE ELECTION COMMISION
... Respondent
2. SRI.MANOJ RAJAPPAN, KANAHATHU HOUSE
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/02/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.5469 of 2010 (G)
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Dated, this the 22nd day of February, 2010
J U D G M E N T
The petitioner challenges Ext.P2, the common order passed by
the 1st respondent disposing of O.P.Nos.103/2008 and 118/2008
filed by the 2nd respondent under Section 4(1) of the Kerala Local
Authorities (Prohibition of Defection) Act.
2. Briefly stated, the facts of the case are that both the
petitioner and the 2nd respondent herein were elected as members
of the Payippad Grama Panchayat in the General Election held in
September, 2005 as the official candidates of the Communist Party
of India (Marxist) {CPI(M)} under the Left Democratic Front (LDF).
The Panchayat has a total membership of 15, out of which 7
members, including petitioner and the 2nd respondent belong to
LDF, 5 belong to United Democratic Front (UDF), 2 belong to
Bharatiya Janata Party (BJP) and one is allegedly an independent.
Soon after the election was held, one Ms.Lissamma Mathew, the
aforesaid independent, was elected as the President and Mr.Thomas
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Mathew was elected as the Vice President.
3. Subsequently, no confidence motions were moved
against the President and the Vice President. It is stated that these
were scheduled for discussion on 01/07/2008. On 24/06/2008,
the CPI(M) Parliamentary Party met and decided to vote against the
no confidence motions and allegedly issued whip to all the party
members in the Panchayat including the petitioner. It was alleged
that though the petitioner received registered whip, she defied the
whip and voted in support of the no confidence motions.
Accordingly, the no confidence motions against the President and
the Vice President were passed and both were voted out. The
allegation in O.P.No.103/2008 filed by the 2nd respondent was
against the stand taken by the petitioner in the meeting held on
01/07/2008 to discuss the no confidence motion, and according to
the 2nd respondent that amounts to her voluntarily giving up her
party membership of her political party. It was on this basis, the 2nd
respondent contended that the petitioner incurred disqualification.
4. In so far as O.P.No.118/2009 is concerned, the case of
the 2nd respondent was that the petitioner contested as President in
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the election held on 06/08/2008 against the official candidate of
CPI(M) and LDF, and got elected with the support of rival UDF and
BJP members. It was also alleged that the petitioner supported the
nominee of the UDF in the Vice President’s election held on the
same day. By this conduct also, according to the 2nd respondent,
the petitioner had voluntarily given up her membership of her
political party and has incurred disqualification.
5. The parties contested the proceedings and the petitioner
filed her objections. Evidence was adduced by both sides and in
Ext.P2 order, detailed discussion has been made about the oral and
documentary evidence adduced by both sides.
6. Dealing with Issue No.2, the Commission held that the
2nd respondent failed to establish the claim that he was competent
to issue whip to the petitioner on behalf of CPI(M) Parliamentary
Party, and that therefore the petitioner could not be found fault with
for violating the whip issued by an incompetent person. However,
appreciating the available evidence, the Commission concluded that
overwhelming evidence supported the contention that Ms.Lissamma
Mathew, the former President who was voted out, was elected to the
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Panchayat as an independent candidate supported by CPI(M) and
LDF, and that she was the CPI(M) and LDF nominee for the post of
President. Thereafter, dealing with the issue of the petitioner
having voluntarily given up the membership of her party, the
Commission held that the petitioner had, by her conduct on
01/07/2008, defected from CPI(M) and LDF and joined hands with
UDF and BJP at the time of considering the no confidence motion. It
was also found that her subsequent behaviour at the time of
elections to the post of President and Vice President corroborates
this conclusion, in as much as she had admitted that she contested
for the post of President in the election held on 06/08/2008 and
defeated the LDF nominee Ms.Lissamma Mathew. In arriving at this
conclusion, the Commission also made reference to Ext.P8, the
minutes of the meeting held on 06/08/2008, which showed that
while the petitioner’s candidature was proposed by the congress
member from ward No.3 and supported by the BJP member from
Ward No.10, it was shown that her opponent Ms.Lissamma Mathew
was proposed and supported by LDF members. Thereafter, the
petitioner was elected bagging 8 votes as against 7 votes bagged by
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Ms.Lissamma Mathew, from which it was concluded by the
Commission that all five UDF and 2 BJP members voted in favour of
the petitioner. From the facts and evidences, concluding that the
petitioner is liable to be disqualified for voluntarily giving up her
membership of the political party, the petitions were allowed by
Ext.P2 order. It is challenging this order, this writ petition is filed.
7. The main contention raised by the learned counsel for
the petitioner is relying on the judgment in Naseera Beevi v. State
Election Commission (2004(1) KLT 1108). However, it is noticed
that by judgment dated 13/07/2005 in W.A.No.1127/2004,
judgment in Naseera Beevi’s case has already been set aside by a
Division Bench of this Court. It has been so stated in paragraph 8 of
the judgment in Varghese v. Kerala State Election
Commission (2009(3) KLT 1)
8. A reading of Ext.P2 order shows that it was appreciating
the evidences adduced by both sides that the 1st respondent
Commission came to the conclusion that Ms.Lissamma Mathew was
the CPI(M) and LDF nominee to the post of President. Having regard
to the voluminous evidences that were available before the 1st
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respondent and the manner in which the evidence is seen
appreciated, I am unable to agree with the learned counsel for the
petitioner that the conclusions in Ext.P2 order are against the
evidence available or that the order is perverse for that reason. If
this finding is accepted, necessarily, the petitioner, a CPI(M)
member, voted against her political party and by that conduct, has
voluntarily abandoned her membership in her political party. If so,
consequently, she is liable to be disqualified, and the conclusion of
the Commission in the order in O.P.No.103/2008 is unassailable.
9. Further even if this Court finds fault with the
Commission for its conclusions in the order in O.P.No.103/2008, in
my view, on admitted facts, the petitioner is liable to be disqualified
in O.P.No.118/2008 . It is admitted in this case that the petitioner
contested the election against the official nominee of the LDF, and
she won bagging votes only of the UDF and BJP, and she also voted
for the UDF candidate for the post of Vice President. In such
circumstances, it is a clear case of voluntarily abandoning
membership from the political party. This issue is also no more
open to doubt in view of the judgments of this Court in Shajahan v.
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Chathannoor Grama Panchayat & Ors.(2000(2) KLJ 451), writ
appeal No.2351/2005, Faisal v. Abdulla Kunhi (2008(3) KLT 534),
Nazeerkhan v. Kerala State Election Commission & Another (2008
(3) KHC 322), which was affirmed by the Division Bench of this
Court in Nazeerkhan v. Kerala State Election Commission & Another
(2009(1) KHC 681 (DB)). Similar view has been taken by a learned
Single Judge of this Court in Dharma Mani v. Parassala Block
Panchayat (2009(3) KLT 29).
In the light of the above principles laid down in these
judgments, I cannot find fault in the order passed by the 1st
respondent.
The writ petition fails and is accordingly dismissed.
(ANTONY DOMINIC, JUDGE)
jg