Mohandas K.P. vs State Election Commissioner and Others

Thottathil B. Radhakrishnan

The petitioner stands disqualified on ground of defection in terms of the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, for short, ''the PD Act''. The order of the State Election Commission, declaring him as so disqualified, is under challenge. Exts.P1 and P2 before the Commission stood to show that the petitioner was, even going by his own statements, part of a coalition the UDF, which included the Indian National Congress

The proceedings before the Commission was initiated by the 3rd respondent. He was the President of the Panchayat. A no confidence motion was carried against him. It was contended in the petition before the Commission that the said no confidence motion was carried with the support of the writ petitioner, who voted in favour of that motion and had, thus, withdrawn from the coalition. The petition before the Commission was filed on 22.12.2008 alleging that it is apprehended further that the writ petitioner is likely to vote in favour of the rival coalition LDF, in the election to the resultant casual vacancy of the President. That election stood scheduled to 30.12.2008.

Those served with notice calling for appearance on 22.1.2009, the petitioner did not appear before the Commission. The proceedings before the Commission concluded ex parte the writ petitioner. The Commission held that the petition before it, was maintainable; that it was not shown that any direction (whip) was issued in accordance with law and that the writ petitioner cannot be held to have violated any direction. The Commission, however, proceeded to hold that on the basis of the materials on record, it was proved that the writ petitioner had contested the election as part of the coalition UDF and had spoken in support of the no confidence motion moved against the President, who was also a member of UDF. That no confidence motion was carried. Accordingly, the Commission held that the writ petitioner had withdrawn himself from the coalition UDF. It was hence that the impugned order was issued.

With the aid of Ext.P1 medical certificate, the writ petitioner pleads that he was suffering from low back pain (Kateegraham). This is the justification that he has to offer for non-appearance before the Commission. Taking Ext.P1 on its face value, it needs to be noted that the said certificate is only to the effect that the writ petitioner needs bed rest for seven days for better cure and he was advised absence from duty for seven days from 18-1-2009. While the petitioner holds but that certificate in support of the plea in paragraph 2 of the writ petition that he had been sick and could not appear on 22-1-2009 before the Commission, the fact of the matter remains that the impugned order is issued by the Commission only, long thereafter, on 9.6.2009 and going by the records of the Commission, as placed by the learned Standing Counsel appearing for it, the writ petitioner was declared ex parte oniy on 28.3.2009. Under such circumstances, I do not find any legal infirmity or jurisdictional error in the Commission having decided the matter ex parte.

With the aforesaid, what calls for further examination is as to whether the findings of the Commission are unsustainable on the basis of the materials on record. Perusing the grounds in the writ petition, it can be seen that the specific finding of the Commission that the writ petitioner is a member of the coalition UDF, is not in dispute. That Ext.P9 before the Commission - the minutes of the meeting in which the no confidence motion was discussed, proved that the writ petitioner had spoken in favour of the motion is also not under challenge. All the nine members, including the writ petitioner, who were present in that meeting voted in favour of the motion and it was thus that the no confidence motion against the President was carried. Hence, the Commission concluded that the writ petitioner had joined hands with the rival coalition LDF to unseat his colleague in the UDF from the post of the President of the Panchayat.

One of the specific contentions of the writ petitioner is that he had, even after the alleged incident, acted in conformity with the coalition UDF by voting in favour of the UDF candidate in the election of the President of the Panchayat, after the no confidence motion was carried against the 2nd respondent herein. The fact remains that the UDF candidate lost in that re-election and the LDF candidate became the Panchayat President.

Be that as it may, an issue, as of law, raised in arguments on behalf of the writ petitioner, is as to whether the concept of an independent member belonging to a coalition withdrawing from such coalition is different from a member of a political party voluntarily giving up his membership of such political party. One of the grounds of inclining disqualification in terms of Section 3(1)(a) of the PD Act, as regards a member of a political party, is that the said member voluntarily gives up the membership of such political party. This concept has been interpreted by the Hon''ble Supreme Court of India in Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others, in relation to the Xth Schedule of the Constitution. The concept Voluntarily giving up the membership of a poliiical party has thereafter been considered by this Court in relation to the PD Act and ultimately in Varghese V.V. Vs. The Kerala State Election Commission and Another, , the Division Bench laid down that the said concept has a wider meaning than resignation. Reference was made to Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, and Shajahan v. Chathannoor Grama Panchayat [ 2002 (2) KLJ 451]. in Varghese''s case (supra), it was further laid down that subsequent change of heart and remorseful conduct of the member or the reconciliatory attitude of the political party cannot repair or undo the damage caused by the disloyal conduct leading to the disqualification and that such steps are to be reassessed by the People, given another choice to contest.

With the aforesaid having been laid down as law in the context of Section 3(1)(a) of the PD Act which uses the phrase ''voluntarily gives up his membership, the question or consideration now would be as to whether the phrase ''withdraws from such coalitioni in Section 3(1)(b), which applied to an independent who is a member of a coalition, makes any difference in the appreciation and application of law.

Going by the definition of ''coalition'' in terms of Section 2(h) of the PD Act, a coalition can be between one or more independents and a political party or one or more independents and one or more political parties or among political parties. This conglomeration is conceived in the legislation made with the intention of prohibiting 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. One does not attain membership, in grammatical sense. in a coalition by taking a membership as one may do when admitted to a political party. The explanation to Section 2(h) provides that a member who stood as a candidate in an election with the support of any one of the political parties or coalition shall be deemed to be a member included in that political party or coalition. This deemed membership in a coalition can be terminated by the breaking down of the coalition itself, a situation noticed by this Court in Pathumma Vs. State Election Commission, . It need not be by any express dissolution. Giving up the membership of a political party can be by resignation. But, voluntarily giving up membership of a political party need not be necessarily by resignation, for incurring the liabilities under the PD Act This is the law laid in the precedents noted above, in so far as coalitions are concerned. there is no question of resignation as such. The membership in a coalition is itself a deemed status. The provision in Section 3(1)(b) that if an independent member of any coalition withdraws from such coalition, he Shall be disqualified from being member of that local authority means only that the member ''withdraws'' from the coalition, in which he had a deemed membership by virtue of the definition contained in Section 2(ii). Here, the learned senior counsel appearing for the 3rd respondent Panchayat supporting the writ petitioner relied on the judgment of the Apex Court in Mohd. Yunus Saleem Vs. Shiv Kumar Shastri and Others, to point out that the word ''withdraw'' means to retire from contest. That decision rendered construing the provisions of the Representation of the People Act, 1951, took the view that "withdraw" in that context means "withdraw or retire from contest". The word ''withdraw'' is not defined in the PD Act. Going by the Chambers''s Twentieth Century Dictionary, ''withdraw'' (verb transitive) is. "to drawback or away: to take back or away: to remove: to deflect. turn aside: to recall, retract". Contextually, therefore, the concept of withdrawing from a coalition is nothing but voluntarily backing way from the coalition or the group.

Now, the legislature having used two sets of words voluntarily giving up membership & withdrawing from coalition; it needs to be considered whether the legislature intended two different sets of situations. One functional tool to appreciate in the statutory provisions under interpretation and construction, is to adopt an approach to understand whether the provisions were intended to result in different situations or consequences. The object sought to be achieved by the PD Act, as already noticed, is to prohibit defection among members of local authorities and to provide disqualification of the defecting members. The prohibition and the liability for violating the prohibition are the same for ail the members of the local authorities. They do not get classified on any ground referable to the question whether they are members of a political party or whether they along with a political party are members of a coalition or whether they are independents forming part of a coalition. The acts sought to be prevented are the same, as was noticed in Varghese''s case (supra) and are governed by the principles quoted therein from Shri Kihota Hollohon Vs. Mr. Zachilhu and others, . What is ultimately sought to be prevented is the evii of political defection motivated by iure of office or other similar considerations, which endanger the foundations of our democracy. The principles laid down by the Apex Court in Kohoto Hollaohan (supra), with reference to the Xth schedule of the Constitution of India apply in to the provisions of the PD Act, which makes the principle applicable to a larger arena without confining its operations only to political parties. it apply to coalitions also.

Therefore, the principles laid down by this Court in the different precedents referred to above on the concept of appreciation of evidence regarding the question whether a member of a local authority belonging to a political party has voluntarily given up his membership of such political party, apply with the same vigour to cases where the allegation of defection is made against an independent, who has allegedly withdrawn from a coalition to which he belonged by virtue of Section 2(ii) of the PD Act and the Explanation thereto. Applying the aforesaid, the admitted and proved facts, particularly, those findings, which are not challenged specifically on facts, are themselves sufficient to sustain the impugned order, though it has been passed by the Commission ex parte. The subsequent conduct of the petitioner of having voted for a UDF candidate to the post of the President, in no manner, improves the case. The result of the writ petitioner''s action is that the 2nd respondent, a member of the UDF, who was the then President of the Panchayat, was ousted from such office by carrying a no confidence motion and the UDF candidate for that casual vacancy of President lost in the election thereto, even though the petitioner had voted for that candidate. The converted intention was achieved, though the petitioner shows the UDF coalition as his cloak even now.

For the aforesaid reasons, I find no jurisdictional error or legal infirmity in the impugned decision. Ends of justice not warrant interference with it. The writ petition fails and the same is accordingly dismissed. No costs