M.A. Viswambharan vs K.M. Abdulla Kunju

A.M. Shaffique, J.—This Writ Appeal is filed by the petitioner in W.P. (C) No. 17178 of 2014 challenging the judgment dated 14.08.2014 of the learned Single Judge.

The writ petition came to be filed challenging Ext. P8, an order passed by the Election Commission declaring that the petitioner/appellant has voluntarily given up his membership from the political party and that he is disqualified from being a member of Kuttampuzha Grama Panchayat in terms of Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as the "Act''). The learned Single Judge by the impugned judgment dismissed the writ petition inter alia holding that the Election Commission has found that there is violation of the whip and that the petitioner has voluntarily given up his membership and there is no reason to interfere with the finding of fact adjudicated by the Commission. On that basis the writ petition was dismissed.

Impugning the judgment of the learned Single Judge this appeal is filed. It is inter alia contended that though under Section 3(1)(a) of the Act, the Election Commission is entitled to pass such order, there is no basis for having declared that petitioner as disqualified. It is pointed out that there was no whip by the political party and that petitioner was bound to comply with the decision taken in a High Power Committee meeting of all the party functionaries held on 18.10.2013 and therefore he cannot be declared as disqualified.

The learned counsel relied upon Section 3(1)(a) of the Act and contended that he has not acted contrary to any direction in writing issued by the political party or by a person or authority authorised in that behalf.

The facts involved in the case would disclose that the petitioner was elected as the member of the Grama Panchayat. He contested the election as an independent candidate supported by Indian Union Muslim League. In the complaint filed before the Election Commission it is contended that the Indian National Congress, Indian Union Muslim League and Kerala Congress (M) fought the election under UDF coalition and in the said election, UDF secured majority. As decided by the district leadership of UDF, Sri. C.J. Eldos belonging to the Indian National Congress was elected as President. Later, a no confidence motion was moved against the President by LDF members. The said no confidence motion was passed and election to the post of President was scheduled on 26.10.2013. The 1st respondent herein was decided to be a candidate for the post of President by UDF and thereafter it was alleged that the District President of Muslim League Sri. M.P. Abdul Khadar issued a whip to the petitioner to vote in favour of 1st respondent. Defying the said order and after fully knowing about the directions and decisions of his political party, he contested to the post of President against the official candidate of UDF. He thereafter was elected in support of the LDF.

After considering the evidence on record the Election Commission found that the conduct of the petitioner in having contested election against the official candidate of UDF in the election to the post of President with the support of LDF and having voted in his favour by disobeying the decision and direction of the District President of IUML which elected him as member amounts to defection.

After considering the said facts and circumstances, the Election Commission, based on the evidence available on record and relying upon the judgments of this Court, held that the petitioner had voluntarily given up his membership. On a perusal of the above order, we find that the findings entered into by the Election Commission is based on materials on record and we cannot find any perversity or illegality in the said finding of the Election Commission.

The learned counsel, however, made strong reliance on Ext. R1 which is produced herein as Annexure A to indicate that there was a decision by the High Power Committee in his favour which he had to comply. But it is relevant to note that the Election Commission had relied upon the evidence of PW2 to come to a finding that necessary directions had been issued to the petitioner to support the UDF candidate and it is contrary to the directions so issued, he himself contested against the UDF candidate. When such material had been relied upon by the Election Commission, we do not find any error in the said decision. The document relied upon by the petitioner as Ext. R1 (Annexure A) is only a decision by the Committee. Apparently PW2 was the District President of IUML, and he had the authority to issue appropriate order or direction. That apart, the materials available on record indicate that the decision of IUML was clear at the time of electing the President. Still the petitioner proceeded to contest the election purposefully which is against the decision of the party and we do not find any reason to take a different view based on Ext. R1.

The learned Single Judge had also considered this material and decided not to interfere with the finding of fact entered into by the Election Commission. In the said circumstances, no good ground is made out to interfere with the judgment of learned Single Judge. Accordingly, the Appeal is dismissed.