JUDGMENT
The common order passed by the Kerala State Election Commission in three different proceedings initiated against the petitioners herein under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 is under challenge in these writ petitions. They were therefore heard together and are being disposed of by this common judgment.
2. The petitioners were elected to the Parassala Block Panchayat as official candidates of the Indian National Congress in the election held in September 2005. The petitioner in W.P (C) No. 318 of 2009 was elected from Division No. 10, the petitioner in W.P (C) No. 337 of 2009 was elected from Division No. 9 and the petitioner in W.P (C) No. 1396 of 2009 was elected from Division No. 1 of the Parassala Block Panchayat. The Parassala Block Panchayat consists of 13 Divisions. The candidates set up by the Indian National Congress won in eight out of the thirteen divisions and the candidates set up by the Left Democratic Front in the remaining five. The official candidates of the Indian National Congress including the petitioners constituted the majority among the members representing the 13 divisions of the Parassala Block Panchayat.
3. After the elections were held in September 2005, the second respondent in W.P (C) No. 318 of 2009 and 337 of 2009 who is the third respondent in W.P (C) No. 1396 of 2009 was elected as the President of the Parassala Block Panchayat and Sri. Vattavila Vijayan was elected as the Vice President. The petitioners in these Writ Petitions were not on good terms with the President and Vice President and the other members of the Parassala Block Panchayat elected as official candidates of the Indian National Congress. The petitioners along with the five members belonging to the Left Democratic Front moved Ext.R2(a) and R2(b) No Confidence Motions against the President and Vice President respectively of the Parassala Block Panchayat. The petitioners are admittedly signatories to the said No Confidence Motions. The motions were tabled for consideration by the members of the Parassala Block Panchayat at its meeting held on 14.5.2008 The No Confidence Motions were carried and the President and Vice President were removed from office.
4. The unseated President of the Parassala Block Panchayat, thereupon instituted O.P Nos. 83 of 2008, 84 of 2008 and 85 of 2008 in the Kerala State Election Commission, hereinafter referred to as the “Commission” for short, for a declaration that the petitioners herein have committed defection and have thereby become disqualified to continue as members of the Parassala Block Panchayat. She also sought a declaration that they are disqualified to contest in any election to the local bodies for a period of six years. The respondent in O.P No. 83 of 2008 is the petitioner in W.P (C) No. 337 of 2009, the respondent in O.P No. 84 of 2008 is the petitioner in W.P (C) No. 1396 of 2009 and the respondent in O.P No. 85 of 2008 is the petitioner in W.P (C) No. 318 of 2009. The unseated President, who moved the Commission contended that the petitioners in these Writ Petitions have violated the whip/direction issued by the Indian National Congress, when they voted in favour of the No Confidence Motions. She also contended that the petitioners have voluntarily given up their membership of the Indian National Congress. Paragraph-7 of O.P No. 83 of 2008 filed by the unseated President before the Kerala State Election Commission reads as follows:
“The respondent has voluntarily abandoned his Membership from Congress which fielded him as a candidate in the General election. She has voluntarily abandoned or given up her membership in Congress and joined in the other Party and moving with the support of LDF in the Panchayat against the will of Congress and thereby committed defection and voted against the President and Vice President supported by Congress causing loss of power in one Block Panchayat to Congress. LDF was in the rival front in the General Election. The workers of UDF and Congress strived hard to get the respondent elected. The subsequent events are also having much relevance. Now also the respondent and other defected members are being supported by LDF. The respondent is issuing press releases against the party. To act against the party and voting against the will of the party is disloyalty. It is clear case of defection liable for disqualification provided under Kerala Local Authorities (Prohibition of Defection) Act, 1999. The respondent is now in the LDF camp. Because of the unscrupulous acts of the respondent, the morale of the workers of Party and front lost and it has affected the existence of the party. As a National party Congress functions on the strength of it's shared belief. The acts of the respondent, independent to the stand of the political party has caused crack in the shared belief of the party among the public and tarnished its political image and existence. Since the respondent has voluntarily given up her membership and moved and voted no confidence against the President and Vice President sponsored by Congress, she is disqualified to continue as Member of Parassala Block Panchayat. Acting in violation of the instructions of the Political Party alone is sufficient to hold that the respondent has voluntarily given up the membership from the party”.
Similar averments have been made in the other petitions also.
5. On receipt of notice from the Commission, the petitioners in these Writ Petitions entered appearance and filed objections. They contended that no whip or direction had been issued and that they have also not voluntarily given up their membership of the Indian National Congress. They also contended that in the absence of a valid whip that was duly served on them, their association with the No Confidence Motions, cannot result in their disqualification.
6. The Commission, on an analysis of evidence, oral and documentary held that no whip or direction had been issued as contended by the unseated President. The Commission thereafter proceeded to consider whether the petitioners in these Writ Petitions are liable to be disqualified for having voluntarily given up their membership of the Indian National Congress. The Commission held on an analysis of the evidence, that the petitioners in these Writ Petitions were elected to the Parassala Block Panchayat as the official candidates of the Indian National Congress and that their conduct in moving the No Confidence Motions against the President and Vice President of the Parassala Block Panchayat who were official candidates of the Indian National Congress establishes that they have voluntarily given up their membership of the Indian National Congress. The Commission also took note of the fact that in the election held on 10.6.2008 to elect a new President and Vice President, the name of petitioner in W.P (C) No. 337 of 2009 was proposed by the petitioner in W.P (C) No. 318 of 2009 and seconded by the petitioner in W.P (C) No. 1396 of 2009 and that the petitioner in W.P (C) No. 337 of 2009 (Smt. L. Vijayam) was elected as the President with the support of the members belonging to the Left Democratic Front. The Commission held that the conduct of the petitioners in aligning themselves with the Left Democratic Front establishes that they have voluntarily given up their membership of the Indian National Congress. The Commission accordingly held that the petitioners are disqualified under the Kerala Local Authorities (Prohibition of Defection) Act, 1999.
7. I have heard Sri. V. Philip Mathews and Dr. K.P Satheesan, the learned counsel appearing for the petitioners, Sri. V. Chithambaresh, the learned Senior Advocate appearing for the second respondent in W.P (C) Nos. 318 and 337 of 2009 and the third respondent in W.P (C) No. 1396 of 2009 and Sri. Murali Puruthothaman, the learned counsel appearing for the Commission. Sri. V. Philip Mathews and Dr. K.P Satheesan, the learned counsel appearing for the petitioners contended that the petitioners can be said to have voluntarily given up their membership of the Indian National Congress only if it is proved that they had acted in violation of any direction issued by the political party to which they belong or any person or authority duly authorised by the political party, that had been duly served on them in accordance with the provisions contained in the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 hereinafter referred to as the ‘Rules’ for short. They contended that as the Commission has held that no such direction was issued, the Commission erred in holding that the petitioners have voluntarily given up their membership of the Indian National Congress. They also challenge the finding of the Commission that they have violated the direction issued by PW2, the President of the Thiruvananthapuram District Congress Committee. The learned counsel appearing for the petitioners contended that as no notice had been served on them, by affixture or by registered post, in the manner prescribed in Rule 4(2) of the Rules, the finding of the Commission that they have violated the direction issued by PW2 regarding the No Confidence Motion which was tabled on 14.5.2008, cannot be sustained. The learned counsel further contended that dissent within the party was brewing long before the No Confidence Motions were tabled, that the petitioners had only expressed their opinion by voting against the President and Vice President and that the mere fact that they had voted in favour of the No Confidence Motions cannot lead to the conclusion that they have voluntarily given up their membership of the Indian National Congress. The learned counsel appearing for the petitioners further contended that a member of a local authority can be disqualified on the ground that he has voluntarily given up his membership of the political party to which he belongs only if it is proved that he had voted contrary to the direction issued by the political party to which he belongs or by a person or authority authorised by the political party and that as the Commission has held that no such direction was issued and served on the petitioners in the manner prescribed in the Rules, the finding of the Commission that the petitioners have voluntarily given up their membership of the political party to which they belong, cannot be sustained and is liable to be set aside.
8. Per contra, Sri. V. Chithambaresh, the learned Senior Advocate appearing for the petitioner before the Commission contended that from the conduct of the writ petitioners, it can be readily inferred that they have voluntarily given up their membership of the Indian National Congress and that to incur disqualification on that ground, the issuance of a whip or direction and its service in the manner prescribed are not necessary. The learned Senior Advocate contended that under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, a member of a local authority can be disqualified, if he or she has voluntarily given up his/her membership of the political party to which he/she belongs or votes or abstains from voting contrary to and in violation of any direction issued by the political party to which he or she belongs. The learned Senior Advocate contended that the petitioners have by their conduct proved that they have voluntarily given up their membership of the Indian National Congress, thereby incurring the disqualification and that the Commission was therefore right in disqualifying them.
9. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that the petitioners were elected to the Parassala Block Panchayat as official candidates of the Indian National Congress. It is also not in dispute that the petitioners had subscribed their signatures to the No Confidence Motions moved against the President and Vice President on 14.5.2007 After the No Confidence Motions were carried, an election was held on 10.6.2008 to elect a new President and Vice President and in that election, the petitioner in W.P (C) No. 337 of 2009 was elected as the President of Parassala Block Panchayat with the support of the other petitioners and the members of the Left Democratic Front. The name of the petitioner in W.P (C) No. 337 of 2009 was proposed by the petitioner in W.P (C) No. 318 of 2009 and seconded by the petitioner in W.P (C) No. 1396 of 2009. Since there is no dispute about these facts, the only question that arises for consideration is whether, by reason of their conduct, the petitioners can said to have voluntarily given up their membership of the Indian National Congress.
10. The Kerala Local Authorities (Prohibition of Defection) Act, 1999, hereinafter referred to as the “Act” for short came into force on 2.10.1995 Section 2(vii) of the Act defines the term “local authority” to mean a Panchayat at any level or a Municipality. Section 2(x) defines the term “panchayat” to mean a Village Panchayat, a Block Panchayat or a District Panchayat. Section 2(xi) defines the term “political party” to mean a political party registered under Section 29A of the Representation of the People Act, 1951. Section 3(1)(a) of the Act which is relevant for the purpose of this case inter alia stipulates that if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued in the manner prescribed by the political party to which he belongs or by a person or authority authorised by it in this behalf, votes or abstains from voting in a voting on a No Confidence Motion against the President or the Vice President of the Panchayat, he shall be disqualified for being a member of that local authority. The Explanation to Section 3 of the Act states that for the purpose of Section 3 an elected member of a local authority shall be deemed to be a member belonging to the political party, if there is any such party, by which he was set up as a candidate for the election.
11. Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India stipulates that a member of either House of Parliament or the Legislative Assembly as the case may be, belonging to any political party shall be disqualified for being a member of the Parliament or the Legislative Assembly as the case may be, “if he has voluntarily given up his membership of such political party. The Apex Court has in Ravi S. Naik v. Union of India (AIR 1994 SC 1558), interpreting the provisions of the Tenth schedule to the Constitution of India held that even in the absence of a formal resignation from the membership of a party, inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. It was held that the words “voluntarily given up his membership” are not synonymous with resignation and have a wider connotation and that a person can voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party.
12. In Rajendra Singh Rana v. Swami Prasad Maurya (AIR 2007 (4) SCC 270), a Constitution Bench of the Apex Court held that the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. It was held that the act that constitutes disqualification in terms of paragraph 2 of the Tenth schedule to the Constitution of India is the act of giving up the membership or defiance of the whip and that the fact that a decision in that regard may be taken in the case of voluntarily giving up, by the Speaker at a subsequent point of time, cannot and does not postpone the incurring of the disqualification by the act of the legislator. The Apex Court also held that from the conduct of the 13 members of Bahujan Samaj Party in meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in the opposition and submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advice of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference that the said 13 members have clearly given up their membership of the Bahujan Samaj Party arises. It was held that no further enquiry or evidence is needed to find that their action comes within paragraph 2(1)(a) of the Tenth schedule to the Constitution of India.
13. In Shajahan v. Chathannoor Grama Panchayat (2000 (2) KLJ 451), a Division Bench of this Court upheld the decision of the Commission which had found that by voting against the political party to which he belonged, the appellant/writ petitioner had voluntarily given up his membership of the party to which he belonged and was therefore disqualified. The Division Bench overruled the contention of the appellant that as his resignation had not been accepted, it cannot be said that he had ceased to be a member of the political party to which he originally belonged. The Division Bench also held that if on the evidence, the Commission has come to the conclusion that the petitioner has voluntarily given up his membership, that is a possible view on the evidence adduced and this Court cannot sit in appeal over the said finding.
14. In Faisal v. Abdulla Kunhi (2008 (3) KLT 534), a learned Single Judge of this Court considered the question whether the petitioner who acted contrary to the direction issued by the District Secretary of the party to which he belonged to resign from the Presidentship of the Panchayat and did not participate in the meeting in which the No Confidence Motion against him was moved by members belonging to his own party, despite a whip issued by the party was liable to be disqualified. The learned Single Judge held that the words “voluntarily giving up membership of the political party” is not to be equated with ceasing to be a member of his party by resignation and that from the conduct of the petitioner if an inference can be drawn that he has voluntarily given up the membership of the political party, he is liable to be disqualified. Reliance was placed by the learned Single Judge, on the decision of a Division Bench of this Court in Writ Appeal No. 2351 of 2005 wherein it was held that acceptance of the nomination by the appellant as a candidate against the official candidate of the party amounts to voluntary abandonment of the membership of the political party.
15. In Nazeer Khan v. Kerala State Election Commission (2008 (3) Kerala High Court Cases 322), a learned Single Judge of this Court held that if from the conduct of the member, it is possible to draw an inference that he had voluntarily given up his membership in his political party, the authority is justified in passing an order disqualifying him. The decision of the learned Single Judge in Nazeer Khan S. v. Kerala State Election Commission (supra), was upheld by a Division Bench of this Court in Writ Appeal No. 1728 of 2008.
16. In the instant case, it is not in dispute that the petitioners were elected to the Parassala Block Panchayat as official candidates of the Indian National Congress. The Indian National Congress is admittedly a political party registered under Section 29A of the Representation of the People Act, 1951. It is also not in dispute that they had actively participated in the No Confidence Motions moved by the opposition against the President and Vice President, of the Parassala Block Panchayat, who were also official candidates of the Indian National Congress. The petitioners are admittedly signatories to the No Confidence Motions and the motions were carried with their support. Though their contention that no whip was issued was accepted by the Commission, the Commission disqualified them on the ground that they have voluntarily given up their membership of the Indian National Congress. Though the learned counsel for the petitioners contend that the finding of the Commission that the petitioners had acted contrary to the directions issued by PW2, the President of the Thiruvananthapuram District Committee of the Indian National Congress cannot be sustained, I am of the opinion that on the admitted facts of this case, it is not necessary to go into the correctness of the said finding.
17. Under the Act, a member can be disqualified if he has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a whip/direction issued by the political party. Disqualification for voluntarily giving up the membership of one's party, is not dependant on the violation of the whip. The intention of the Act is that the member who has violated the whip or has abandoned the membership of the political party to which he belongs shall be disqualified. It is not necessary to hold that the member has violated the whip in order to hold that he has voluntarily abandoned the membership of his political party. The grounds for disqualification are distinct and are not interlinked. Therefore even if this Court were to hold that the petitioner before the Commission has not proved that PW2 had issued and served on the writ petitioners a direction regarding the voting on the No Confidence Motions that were tabled on 14.5.2008, the Commission was justified in holding that the petitioners have voluntarily abandoned their membership in the Indian National Congress.
18. In the election held on 10.6.2008 after the No Confidence Motions carried, to elect a new President the petitioner in W.P (C) No. 337 of 2009 was elected as the President of the Parassala Block Panchayat with the support of the petitioners in the other two writ petitions and the five members of the Left Democratic Front. The official candidate of the Indian National Congress was defeated. From the conduct of the petitioners in moving the No Confidence Motions against the President and the Vice President of the Panchayat and voting in favour of the No Confidence Motions and their subsequent conduct in getting the petitioner in W.P (C) No. 337 of 2009 elected as the President with the support of the Left Democratic Front, an irresistible inference can be drawn that they have voluntarily given up their membership in the Indian National Congress. As held by the Apex Court in Rajendra Singh Rana v. Swami Prasad Maurya (supra), on the admitted facts, no further enquiry or evidence is required to hold that their action comes within the purview of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The pleadings and the evidence before the Commission also justify the said conclusion. The Commission was therefore right in holding that the petitioners have incurred disqualification by voluntarily giving up their membership of the Indian National Congress.
For the reasons stated above, I hold that there is no merit in the challenge to the order passed by the Commission. The Writ Petitions fail and are accordingly dismissed. No costs.
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