R1 BY ADV. SRI.MURALI
PURUSHOTHAMAN, SC. R2 BY ADV. SRI.GEORGE POONTHOTTAM.
J U D G M E N T
Shaffique, J.
These
appeals arise out of a common judgment dated 8.2.2012. By the impugned
judgment, the learned Single Judge upheld an order passed by the State Election
Commission declaring the appellants/writ petitioners as disqualified on account
of the defection in terms of
Section 3 of the Kerala Local Authorities
(Prohibition of Defection) Act, 1999
(for short 'the Act').
2. The short facts
involved in the above appeals would disclose that an election was held to the
Local Self Government Institutions in the year 2010 in respect of Pambadumpara
Grama Panchayat, Idukki District. The appellants were elected as members of the
Panchayat. They were belonging to the political party Indian National Congress
(I) (for short 'INC'). Out of the 16 seats, INC candidates won in 10 seats,
Kerala Congress (for short 'KC') in one seat and an independent supported by
Congress in one seat. All of them together are the allies of United Democratic
Front (for short 'UDF'). 3 seats were won by Left Democratic Front (for short
'LDF') and one seat was won by an independent candidate supported by Bharatiya
Janata Party (for short 'BJP'). Since the INC party got majority to rule the
Panchayat, it was decided to convene a parliamentary party meeting to elect the
President, Vice-president, Parliamentary party office bearers and Whip. A
meeting was convened on 6.11.2010 in the presence of Advocate Sri. M.N. Gopi,
the General Secretary of the District Congress Committee (for short 'DCC'). In
the meeting, all officers except parliamentary party leader and whip were
selected unanimously. Since there was two nominations for the post of
Parliamentary party leader and Whip, a suggestion was made to place the matter
at the disposal of the DCC. The meeting was adjourned to 8.11.2010. The
committee also authorized Adv. Sri. M.N. Gopi to contact the DCC and to get
instructions. Adv. Sri. M.N. Gopi discussed the matter with the DCC and the
President of the DCC issued a direction to see that Mr. Sreemandiram Sasikumar
is elected as President of the Grama Panchayat. It is said that a parliamentary
party meeting was convened by Sri. M.N. Gopi on 8.11.2010 and reported the
matter to the above said committee. The appellants purposefully abstained from
attending the meeting and it was unanimously decided to elect the aforesaid
Sreemandiram Sasikumar as Parliamentary party leader and the 2nd respondent as
Whip of the Panchayat. It is further contended that the 2nd respondent has
issued whip in writing to all members to vote in favour of Mr.Sreemandirum
Sasikumar. On 8.11.2010, the Presiding Officer called for the meeting to elect
the President of the Panchayat. Contrary to the decision of the Parliamentary
party and instruction of the political party, as against the official candidate
of INC Mr. Sreemandiram Sasikumar, the name of Mr. C.S. Yasodharan who is also
of INC party was proposed and seconded by the members. Mr. C.S. Yasodharan was
unwilling to withdraw the candidature and decided to contest in the voting. 5
members of INC and one independent voted in favour of Mr. Sreemandiram
Sasikumar whereas the appellants, the KC members and the independent candidate
supported by BJP voted in favour of Mr. C.S. Yasodharan, who got 7 votes and he
was declared to be elected with the majority of one vote. This, according to
the petitioner, was clearly against the whip issued and also amounts to
defection in terms of Section 3 of the Act.
3. Objection was
filed by the appellants inter alia contending that though a meeting was
convened on 6.11.2010, no decision was taken to approve the candidature of
President. It was decided that the INC candidate should be the President and
Vice President would go to KC candidate. It is further contended that there was
no meeting on 8.11.2010. No whip was received and they did not receive any
notice regarding the same. Since no communication was obtained from the DCC,
majority of the members of UDF decided to support Mr. C.S. Yesodharan as
President and Sreelatha Surendran as Vice president. Therefore, according to
them, there was no decision at all on 8.11.2010 by the DCC to elect Mr.
Sreemandiram Sasikumar and therefore the name of Mr. C.S. Yasodharan was
proposed and he was elected. They did not act in any manner defeating the
interest of INC and therefore no case is made out for treating that they have
acted against the interest of the INC Party.
4. Five cases were
filed by the 2nd respondent herein against all the 5 members of INC who voted
in favour of Mr. C.S. Yasodharan. The Election Commission, after having
considered the entire material on record, came to the finding that no whip was
issued for the candidature of Mr.Sreemandiram Sasikumar. But, coming to the
issue regarding voluntarily giving up of membership from the party, it was
found that the appellants having violated the directions issued by the DCC, had
acted against the interest of INC party and therefore they are disqualified to
continue as members of the Panchayat as provided under Section 3 of the Act. It
is impugning the aforesaid order of the Election Commission that the writ
petitions were filed.
5. The learned
Single Judge, by the common judgment, dismissed the writ petitions inter alia
observing that when it is an admitted fact that the appellants did not vote in
favour of Mr.Sreemandiram Sasikumar, an inference can be drawn that they have
voluntarily given up their membership of the political party. That apart, since
they were supported by an independent candidate who won by the support of BJP,
which was not a constituent of UDF, the finding of the Commission cannot be
unsettled. Further, it is found that though the appellants have voted in favour
of another INC candidate, it is clear that there has been a defiant attitude on
the part of the appellants in not voting for the candidate as directed by the
INC party. Such facts also amount to voluntarily giving up membership of the
political party to which they belong. Since the order passed by the Election
Commission does not suffer from any infirmity, there is no necessity to
interfere with the said order, is the finding of the learned Single Judge.
6. The main
contention urged on behalf of the appellants is that though a decision was
taken on 6.11.2010 to elect the President depending upon the instruction issued
by the DCC, no such decision has been taken by DCC and therefore in the absence
of any such instruction, it could not be stated that the appellants have
violated any direction issued by the DCC for electing a particular person as
President of the Panchayat. In the absence of any such decision, it was well
within the powers of the members to have nominated a person of their choice,
which will not in any way amount to voluntarily giving up membership in the
political party. It is further argued that the Election Commission has not
considered the evidence and materials placed on record properly and the
decision therefore amounts to perversity, which should have been taken note by
the learned Single Judge and arrived at a different finding. Since such
jurisdiction has not been exercised by the learned Single Judge, the appellants
are entitled to invoke appellate jurisdiction of this Court to set aside the
findings of the Election Commission.
7. Heard the
learned senior counsel Sri. S. Sreekumar appearing for the appellants, Sri.
George Poonthottam, learned counsel appearing for the 2nd respondent and Sri.
Murali Purushothaman, learned counsel appearing for the Election Commission.
8. The learned counsel
for the appellants made specific reference to the pleadings and evidence on
record. The main contention urged is based on the minutes of meeting held on
6.11.2010. The said meeting was attended by all the INC candidates who won the
election. The minutes of the said meeting indicates that there was no consensus
to elect a parliamentary party leader as the name of Sreemandirum Sasikumar as
well as C.S. Yasodharan were suggested by the party members. Therefore, it was
unanimously decided that all of them will accept the decision of the DCC and
further decided to request the DCC to take a decision as to who should be the
parliamentary party leader. There was consensus as far as the Deputy Leader was
concerned and the members accepted the nomination of the name of Smt. Usha
Rani. In regard to Whip as well, there was dispute and the members decided to
request the DCC to nominate the party whip. There was no dispute with reference
to the election of Treasurer. Finally the meeting was concluded and there was a
decision to hold the meeting on 8.11.2010 at 8 a.m. The learned senior counsel
specifically referred to the words written as "8/11/2010 8 a.m. ",
which means that "the meeting will again be held at 8 a.m. on
8/11/2010". These words, according to the learned senior counsel, were
specifically incorporated into the minutes aforesaid subsequently as it was not
decided to have a meeting on 8.11.2010 at 8 a.m. Therefore, it is contended
that on 8.11.2010, there was no notice for any meeting at all and no such
meeting was ever held.
9. Another
contention is based on the evidence of Mr. Roy K. Poulose, who is the DCC
President and the evidence of Adv. Sri. M.N. Gopi, who is the General Secretary
of DCC. The main argument is that though in the meeting held on 6.11.2010, it
was decided to accept the decision of DCC regarding Parliamentary Party Leader
and Whip, there was no such decision by the DCC and in such circumstances,
there was no reason to support Mr. Sasikumar, who was not a person nominated by
the DCC. Hence, it is argued that when DCC has not given their decision in the
matter regarding as to who should be the candidate, the appellants have chosen
their own candidate who won the election to the post of President. Merely for
the reason that an independent candidate of BJP supported Sri. C.S. Yasodharan,
in a democratic process it cannot be stated as wrongful. It is not a case where
the appellants have sought for the support of BJP candidate, whereas it is an
instance where there was dispute between two factions of the Congress
candidates and that election was held between them. In the absence of a
decision taken by the DCC in this regard, the question of defection does not
arise at all.
10. The whole
argument is based on the materials placed on record and therefore it is useful
first to refer to the statutory provision and thereafter to consider whether
the Election Commission has gone wrong in arriving at the decision as
aforesaid. What has to be looked into is whether the decision of the Election
Commission is based on materials or whether there is any perversity in arriving
at such decision and whether relevant materials have been considered while
passing the said order.
11. Section 3(1)(a)
of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 reads as
under:
"3. Disqualification on ground of defection:-
(1) Notwithstanding
anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in
the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the
time being in force, subject to the other provisions of this Act,-
(a). 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 by the political party to which he belongs or by a
person or authority authorized by it in this behalf in the manner prescribed,
votes or abstains from voting.
(i) in a meeting of a Municipality, in an
election of its Chairperson, Deputy Chairperson, a member of standing Committee
or the Chairman of a standing committee; or
(ii) in a meeting of a Pandhayat,
in an election of its President, Vice President, a member of a standing
committee; or the Chairman of the standing Committee; or in a voting on a
no-confidence motion against any one of them except a member of a Standing Committee."
We are concerned with the first part of Section 3(1)(a).
The question to be
considered is whether the appellants being members belonging to INC party have
voluntarily given up their membership of such party.
In regard to the
voluntarily giving up membership in a political party, the failure to adhere to
the directions issued by the political party has also been considered to be a
good ground for declaring a person as defective from the following judgments:
(i) Nazeer Khan v. Kerala State Election Commission and Another, (2008 (2) KLJ
916).
(ii) Faisal P.V. v. K.A. Abdulla Kunhi & Another (2008 (3) KLT 534).
(iii) Biju R.S. & Others v. State Election Commission & Others, (2009
(3) KLT 29).
(iv) Chinnamma Varghese v. Kerala State Election Commission &
Others, (2010 (3) KLT 426).
(v) Varghese V.V. & Another v. Kerala State
Election Commission & Another, (2009 (3) KLT 1).
(vi) Muhammedkunhi B.
& Another v. K. Abdulla & Another, (2010 (4) KHC 307).
In Varghese's
case (supra), a Division Bench of this Court held as under:
"7. The Kerala
Local Authorities (Prohibition of Defection) Act, 1999 was brought out "to
prohibit defection among members of local authorities in the State of Kerala
and to provide for disqualification of the defecting members for being members
of the local authorities".
S.3 deals with disqualification on the ground
of defection. S.3(1)(a) reads as follows:-
"3. Disqualification on ground
of defection:- (1) Notwithstanding anything contained in the Kerala Panchayat
Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of
1994), or in any other law for the time being in force, subject to the other
provisions of this Act,-
(a). 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 by the political
party to which he belongs or by a person or authority authorized by it in this
behalf in the manner prescribed, votes or abstains from voting.
The expression
'defection' as such is not defined in the Act. Probably the expression does not
require a definition since the concept is so plain. But the Legislature has
left the disqualification to be decided on the defined conduct of the member.
We are concerned with the conduct of voluntarily giving up membership in the
political party. It is now settled law that in order to attract the
disqualification on the ground of voluntary giving up membership in the
political party, the elected member need not resign from the party.
In Ravi S.
Naik v. Union of India (AIR 1994 SC 1558)
it was held that voluntarily giving
up membership is not synonymous with resignation. Voluntary giving up
membership has a wider meaning than resignation as observed by a Division Bench
of this court in Shajahan v. Chathannoor Grama Panchayat (2002 (2) KLJ 451). In
Ravi S.Naik's case the Apex Court made it clear that "Even in the absence
of a formal resignation from membership an 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".
In Rajendra Singh Rana v. Swami
Prasad Maurya ((2007) 4 SCC 270)
also the Supreme Court held that it is the
conduct of the elected members that is to be looked into while considering
whether an elected member has become disqualified on the ground of defection
based on voluntary giving up membership in the political party.
In
G.Viswanathan v. Speaker, Tamil Nadu Legislative Assembly, ((1996) 2 SCC 353)
the Apex Court held that "the Act of voluntary giving up the membership of
the political party may be either express or implied".
In Faisal v.
Abdulla Kunhi (2008 (3) KLT 534)
a learned single Judge of this court has taken
the view that the expression "voluntarily giving up membership of his
political party" is not to be equated with ceasing to be a member of his
party by express resignation; it is to be inferred from the conduct of the
member. It was also held therein that the relevant date for deciding the
question of disqualification is the date on which the member voluntarily gives
up the membership."
12. The Election Commission in the order specifically
comes to a finding on the basis of evidence of PW2, the President of DCC and
PW4, the General Secretary of DCC that the DCC has authorized the members of
INC Party to elect PW3, ie. Sreemandirum Sasikumar as President of the
Panchayat. It is also found that the said decision has been conveyed to all the
members by PW4 over phone. It is further found that the stand taken by the
appellants that they were not informed about the decision of the DCC regarding
the election to the post of President is not believable. The Election
Commission took note of the fact that when a decision was taken on 6.11.2010 to
abide by the decision of DCC, it is futile to contend that they did not receive
any decision of DCC before the election to post of President. Since PW4, the
Secretary of DCC, was in charge of the election in the Panchayat and he was
authorized by the President of the DCC to elect Mr. Sreemandirum Sasikumar, it
was unethical on the part of the appellants to have obtained support of BJP
candidate and also the KC candidate for support. It is also found in regard to
the alleged fabrication of the minutes at X1 that even assuming that there was
no decision to hold the next meeting on 8.11.2010, still when the members
decided to abide by the decision of DCC, necessarily it assumes importance that
the decision ought to have come prior to the time of election and therefore on
facts and evidence, it was found that the appellants did not act in regard to
the direction issued by the District Congress Party.
13. The thrust of
the argument of the learned senior counsel for the appellants is based on the
fact that the DCC has not taken any decision. It is argued that the President's
opinion or the opinion of the General Secretary of DCC cannot be the decision
of DCC. In fact, PW2, the DCC President, in his evidence, had clearly indicated
that the INC Party was under the expectation that if Congress gets majority in
the election, then the senior member Mr. Sreemandirum Sasikumar will be the
President. Adv. Sri. M.N. Gopi, PW4, was entrusted with the responsibility of
taking a decision regarding the election, as he was the General Secretary of
DCC. He convened a meeting on 6th and he participated in the meeting. PW2
received a report stating that the party could not take a decision in the
matter. Hence, he has given information in writing on 7th to Adv. Sri. M.N.
Gopi and requested him to convene a meeting on 8th morning and inform the
members the decision that Mr. Sreemandirum Sasikumar would be the candidate of
the party. In cross examination, he says that though no instructions were given
before the election regarding the proposed President, there would be an idea as
to who would be the President. Adv. Sri. M.N. Gopi was entrusted with the
pre-election matters, which was given in writing. He had also stated in cross
examination that Sri. M.N. Gopi was instructed in writing to convene a meeting
on 7th and inform the party decision. Sri. M.N. Gopi as PW1 stated that on
7.11.2010, out of the elected members, 6 members gave a letter to the President
of DCC to nominate Mr. Sreemandirum Sasikumar as President. The said letter is
produced as X2, though the marking was objected. He relied upon X3, a letter by
which the DCC President took a decision regarding the same and intimated to
him. According to him, on the basis of X3, he intimated the decision to all
Panchayat members. In the meeting held on 8.11.2010, he reported this matter,
which is evident from Annexure X1B. It is based on the aforesaid materials that
the Election Commission had arrived at a finding that the DCC has taken a
decision in the matter.
14. True that there
is no material to indicate that the DCC has convened the meeting and a decision
was taken in the matter. It was the President of the DCC who had informed the
General Secretary of DCC that Mr. Sreemandirum Sasikumar should be candidate
for the post of President. The short question is whether the appellants are
justified in contending that the decision of the President of the DCC is not
the decision of the DCC.
15. Powers and
functions of the President and office bearers of the DCC have not been made
available. At any rate, there is evidence to indicate that Adv. Sri. M.N. Gopi,
who is the General Secretary, was in charge of the pre and post elections. He
was in charge of conducting various meetings and when the General Secretary, in
his evidence, has indicated that information has been given to all the members
that Mr. Sreemandirum Sasikumar shall be elected as the President and it is
based on the direction issued by the President of the DCC and when such an
evidence has been accepted by the Election Commission and is neither perverse
nor based on irrelevant materials, we do not think that we should exercise the
appellate jurisdiction to come to a different finding than what has been found
by the Election Commission. The Election Commission further finds that even if
there is interpolation in Annexure X1A minutes dated 6.11.2010 regarding the
holding of meeting at 8 a.m. on 8.11.2010, all the members very well knew that
a decision from the DCC had to come prior to the time of election and therefore
such a contention on the side of the appellants cannot be sustained.
16. Learned counsel
for the 2nd respondent, while supporting the order of the Election Commission
as well as the findings of the learned Single Judge, relied upon the objection
filed by the appellants, wherein they have taken a contention that to their
knowledge, no meeting was held on 8.11.2010 and no intimation was given to them
regarding the meeting, which was alleged to have taken place on 8.11.2010. It
is their case that they did not purposefully abstain from attending the
meeting. It is argued that when the General Secretary, Adv. Sri. M.N. Gopi, in
his evidence, has clearly indicated that all the members were informed about
the decision of the President of DCC, and in the meeting held on 6.11.2010,
they have decided to adhere to the decision of the DCC, the President's opinion
ought to have been accepted as the opinion of DCC. All decisions of DCC are
communicated to the respective parties by the President and merely for the
reason that there was nothing in writing to indicate that DCC was held and then
a decision was taken is purely a hyper technical approach. The meeting was held
on 6.11.2010 and the election date was on 8.11.2010. Therefore when the
President communicates to the General Secretary as to who should be elected as
the President, the said decision is to be complied by all the members.
17. It is not in
dispute that this case depends upon the evidence available on record. The DCC
President and the Secretary clearly indicated about the candidature of
Mr.Sreemandirum Sasikumar, which cannot be brushed aside as perverse, when the
Election Commission takes a decision on the basis of the said evidence. In the
absence of any perversity in the said finding of fact based on evidence, the
writ court cannot exercise the power of judicial review and re-appreciate the
evidence.
In the said circumstances, we do not find any merit in the grounds
urged on behalf of the appellants and accordingly, the appeals are dismissed.
