Nizar Muhammed vs Milsy Shaji

Mohammed Nias C.P., J

WP(C)No.24572 of 2024

The writ petitioner challenges the order passed by the Kerala State Election Commission, Ext.P11 declaring that the petitioner has committed defection and hence disqualified to continue as a member of the Paingottoor Grama Panchayat and also for declaring him as disqualified to contest as a candidate in any election of local authority for six years, allowing OP No.27/2021 filed by the first respondent herein.

The first respondent filed the above original petition contending that she won the election to the Peringottoor Grama Panchayat as the official candidate of the Indian National Congress (hereinafter referred to as 'INC') in Palm symbol and is a constituent of the United Democratic Front (UDF). It was alleged that the first respondent contested as an independent candidate supported by UDF. In the election held for the Local Self Government Institutions in December 2020, both the petitioner and the first respondent who were UDF candidates won and became Panchayat members. They have given sworn declarations before the Secretary of the Panchayat concerned, showing their association with the INC political party. The said declaration given by the respondent to the Secretary as per Rule 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, affirmed that the first respondent was an independent candidate supported by INC which is a constituent of UDF.

It is stated that the Grama Panchayat has a total of 13 Ward members out of which, 5 members belong to the Indian National Congress (INC) and one independent member supported by the INC and UDF, who is the respondent in the election petition. It was contended that the LDF coalition had 6 members. After the election, at the instance of the district leaders of UDF, arrangements were made for the rule of the Panchayat with 6 members from UDF and 1 independent member supporting UDF. The post of the President of the Panchayat was then allotted to an independent member namely Cissy Jaison of Ward No.11. It is pleaded that this arrangement was made known to all members of the UDF including the petitioner and the respondent. The respondent was elected as the Vice President of the Panchayat as the candidate of INC and UDF. The respondent, without any prior intimation to the INC and UDF resigned from the post of Vice President of the Panchayat.

Within days of his resignation, the LDF faction issued a notice of no-confidence motion against the President supported by the INC and UDF. The said motion was tabled on 15.09.2021. On getting the notice the UDF as well as INC decided to defeat the motion. INC through the Ernakulam District Committee President, had given a written instruction by way of a whip (direction in writing) dated 11.9.2021, to all the members belonging to the INC including the respondent. The whip directed to refrain from voting in the no-confidence motion moved against the President of the Panchayat and to defeat the motion scheduled on 15.09.2021. Since the respondent did not receive the whip, the said whip was sent by a registered post on 11.09.2021 and it was also affixed in his residence as provided under law. The whip was also communicated to the Secretary of the Panchayat concerned.

On 15.9.2021, in the meeting for considering the no-confidence motion, the respondent, in blatant violation of the whip voted in favour of the no-confidence motion thus defeating the official candidate of INC/UDF with the support of the members of the LDF coalition. Therefore, it was alleged that the respondent had withdrawn from the INC/UDF by defying the whip and also by voluntarily abandoning his membership which fielded him as a candidate in the general election. It is alleged that the respondent had voluntarily abandoned or given up his membership in INC and joined another party moving with the support of LDF in the Panchayat against the will of INC and the coalition, and cast his vote in the no-confidence motion against the President of the Grama Panchayat, thereby committing defection. Thus, a declaration was prayed that the respondent had become subject to disqualification and that he was disqualified to contest any election in the local bodies for six years.

An objection was filed by the respondent submitting that the respondent had contested the election from Ward No.10 as directed by the Muslim League and that he need act only in accordance with the directions issued by the authorised person of the Muslim League party and he was totally unaware of any arrangements made as alleged in the petition. It was also stated that there were no written instructions by way of any whip dated 11.09.2021 issued to him and since he was not aware of any direction or whip of the alleged intention to political party INC, he has not defied any intention or direction of political party as alleged in the petition. He also denied that the respondent had withdrawn from UDF and joined another party with the support of LDF. He thus prayed for dismissing the original petition filed against him.

WP(C)No.24611 of 2024

The writ petitioner challenges the order passed by the Kerala State Election Commission, in OP No.35/2021, Ext.P11, filed by the first respondent herein. The first respondent contended in OP 35/2021 raising identical contentions as in the connected writ petition, that in violation of the agreement made after the election to the Panchayat, the respondent resigned from the post of Vice Presidentship of the Panchayat. Thereafter, the LDF faction moved a no-confidence motion against the President. The respondent supported that motion which led to the UDF winning the motion, and the same was the subject matter of OP No.27/2021 from which WP(C)No.24572/2024 was filed.

After the removal of the President through a no-confidence motion, the election for the new President was scheduled for 20.10.2021. The petitioner was decided by the INC/UDF to contest for the post. The respondent who was elected as a member supported by INC/UDF and who had also submitted the sworn declaration showing his political affiliation for given a whip dated 11.10.2021 which specifically directed the members including the respondent to vote in favour of the petitioner representing the INC/UDF as the President of the Panchayat. It is alleged that the whip was served through registered post, but the same was returned 'unclaimed'. In the meeting conducted on 20.10.2021 for the election of a new President, the respondent in blatant violation of the whip voted in favour of the opposite faction – the LDF, against the official candidate INC/UDF, which resulted in the defeat of the candidates sponsored by the INC/UDF. Thus, it was alleged that the respondent disobeyed the written direction. Thus it was pleaded that the respondent had withdrawn from INC/UDF and also defied the valid direction given by the District President of INC, and voluntarily abandoned his membership from INC/UDF which fielded him as a candidate in the general election. It was further contended that he had voluntarily given up the membership of INC and joined another party moving with the support of LDF in the Panchayat against the will of INC and the coalition, and cast his vote in the election of the new President in the Grama Panchayat and thereby committing defection. Thus, a declaration was prayed that the respondent had become subject to disqualification, thus disqualifying himself to continue as a member of the Panchayat as well as for a declaration that the respondent was disqualified to contest in any election for local bodies for six years.

An objection was filed raising a similar contention denying the issuance of the whip and also stating that the respondent had contested the said election from Ward 10 as directed by the Muslim League, that the respondent had acted only as per the directions issued by the authorised persons of the Muslim League. Therefore, is alleged that he had not violated or disobeyed any directions and he was never aware of any whip issued by INC. The allegation that he had withdrawn from UDF, defied the whip and abandoned his membership from INC/UDF was also denied.

In OP No.35/2021 from which WP(C)No.24611/2024 arose, the following issues were framed:

“9. The following points arise for consideration

(i) Whether the respondent contested the election as an independent candidate supported by INC as alleged?

(ii) Whether the whips issued by the INC is binding on the respondent as alleged?

(iii) Whether copy of the whip was served to the Secretary of thte panchayat as provided under rule 4(2)?

(iv) Whether the respondent has committed defection as provided under section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 as alleged?

The Election Commission found that the declaration filed by the respondent immediately after the election under Rule 3(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules would show that the respondent was a member of the UDF coalition. Ext.X2 is the register maintained in the Panchayat under Rule 3(1) of the Rules to record the party affiliation of elected members of the Panchayat which shows that the respondent was an independent member supported by INC in the UDF coalition. Based on the said documents and the evidence of the respondent as RW1 where he admitted the veracity of the entries in Ext.A1 nomination paper, Ext.X1 declaration and Ext.A2 party affiliation Register, and also relying on the explanation to Section 3(3) of the Act, which was a deeming provision which notices that 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 or given support as a candidate for the election. The Commission also found that there was an agreement marked as Ext.B1 dated 23.10.2020. Thus in view of the authentic documents, such as Exts.A1, X1, A2 and B1, the Election Commission found that even if there is a failure to prove a valid whip, still the petitioner had proved that the respondent by its conduct voluntarily give up membership of the party under whose banner he was elected. Thus finding that there is evidence from the record that the respondent was aware of the decision taken by the UDF coalition but failed to act in accordance with the same and acted hand in glove with the LDF member to defeat the candidate fielded by the INC/UDF by voting in favour of the candidate fielded by LDF which was nothing short of disloyalty attracting definition under Section 3(1) of the Act.

Learned Senior Counsel appearing for the petitioner Sri.S.Sreekumar, argues that the order of the Election Commission cannot be sustained at all. He argues that even in the declaration under Form 2 at the stage of nomination the petitioner is shown as an independent candidate, having allegiance to UDF. The same is the entry in the register maintained in the Panahcyat and also the declaration of the elected candidates under Rule 3(2) of the Rules, all of which show that the petitioner was an independent candidate supported by the UDF. The petitioner submits that even in Ext.P7, the petitioner is shown as an independent candidate. It is the Secretary who has made an endorsement that the petitioner is an independent candidate in the support of the INC/UDF and the said endorsement made by the Secretary in Ext.P5 register is against Ext.P6 declaration of the writ petitioner and therefore, the same is not binding on him. The petitioner has never claimed anywhere that he was elected as an independent candidate with the support of INC or that he was a member of INC. As the petitioner contested the election as an independent candidate supported by the Muslim League, a constituent of the LDF coalition, the writ petitioner can at best be deemed as a member of IUML a political party or UDF coalition by virtue of the explanation to Section 2 (ii) of the Act, 1999. It is also to be stated that a 'direction in writing' as defined in Section 2 (iva) of the Act, 1999, and read along with Rule 4 (1)(ii) of the Rules, the whip has to be given by the member whom the members of the said coalition and the members considered to be included in it, in the local authority concerned elect for the purpose, on majority basis from among themselves.

Accordingly, the learned senior counsel argues that since the petitioner was not a member of any political party but contested the election as an independent candidate supported by the Muslim League, a direction can only be issued by a member who was elected by the said coalition on a majority basis. Admittedly, the whip in the instant case was issued by the District President of INC, a political party defined under Section 2(xi) of the Act, 1999, and therefore not binding on the petitioner who cannot be deemed to be a member of that political party. It is also urged that there was no averment in the petition filed before the Commission that a coalition was formed with a political party and independent candidate. Since there are no pleadings to the effect that a person for the purpose of Rule 4(1)(ii) of the Rules has been elected. Given the above contentions, the findings by the Election Commission that the directions issued by the political party, INC were defied by the petitioner cannot be upheld. The consequent finding that the petitioner has voluntarily given up the membership of the political party is equally wrong. Learned Senior Counsel also argues that the voluntary giving up of membership of a political party has to be dealt with under Section 3(1)(a) of the Act, while as regards an independent member belonging to any coalition will have to be considered under Section 3(1)(b) of the Act. To attract the first limb of Section 3(1)(b), withdrawing from such a coalition presupposes the existence of a coalition and since the election petition proceeds on the basis of the petitioner being deemed to be a member of INC, the very issues framed by the Commission as well as the corresponding findings entered are wrong and contrary to the pleadings and evidence on record, therefore, liable to be interfered with. These essential contentions are common to the petitioner in both cases. Learned senior counsel also relies on the judgment of this Court in Chinnamma Varghese v. State Election Commission of Kerala, Tvm and another (2010 KHC 655) and Joseph K.M. v. Babychan Mulangasseri and others [2015 (1) KHC 111)

Learned counsel for the first respondent Sri. Mathew A. Kuzhalanadan argues that in view of the petitioner's entries in Ext.A1 nomination paper submitted by the writ petitioner that he is an independent candidate supported by the UDF, Ext.X1 declaration filed by him immediately after the election under Rule 3(2) of the Rules, shows that he is a member of UDF coalition. Ext.X2 register maintained by the Panchayat under Rule 3(1) of the Rules also records the party affiliation of the writ petition. Ext.X2 shows that he is an independent member supported by INC in the UDF coalition. He had also admitted the same in cross-examination as RW1 about the veracity of entries in Ext.A1, Ext.X1 and Ext.A2 party affiliation register. In view of the above, there cannot be any doubt at all that the petitioner who is the part of UDF coalition had voted in favour of the no-confidence motion by defying the whip by colliding with the opposite front namely LDF for removing the Panchayat President and also resulting in the UDF losing governance of the Panchayat. The petitioner had also proved by the above conduct that he had voluntarily given up the membership of the party under whose banner he was elected. Learned counsel also relies on the explanation to Rule 3(3) of the Rules and contends that the petitioner having contested the election with the support of a political party must be considered to be a member of that political party even without the member joining the political party. As a consequence of this, the whip issued by the District President of INC has to be taken as proper and defying the said whip would entail disqualification. As it was the case of the writ petitioner that he was part of the UDF coalition, it must be taken that he was aware of the decision of the said coalition but had failed to act in accordance with the directions of the coalition and acted hand in glove with the LDF members to oust the Panchayat President who has elected with the support of the UDF members by carrying the no-confidence motion against her. All the above clearly showed that the same is a conduct which would attract disqualification within the meaning of Rule 3(1) of the Rules,1999. He submits that the order of the Election Commission is legal and justified, and warrants no interference at the hands of this Court.

Learned standing counsel for the Election Commission, submits that in the petition filed in both cases there was a clear contention that the petitioner was part of the UDF coalition. He therefore, argues that under Section 3(1)(b), if an independent member belonging to any coalition withdraws from such coalition or joins any political party or any other coalition, or if such a member, contrary to any direction in writing issued by a person, or authority authorised by the coalition in its behalf in the matter prescribed, votes or abstains from voting, the same results in a disqualification.

Therefore, Sri. Deepulal Mohan, learned Standing Counsel appearing for the Commission argues that there are three situations in Section 3(1)(b) itself, which can lead to disqualification and in the instant case, based on the admitted documents including the statutory ones, it must be taken that the writ petitioner who did belong to the UDF coalition, had withdrawn from the said coalition and had acted contrary to the directions in writing issued by a person or authority authorised by the coalition in his behalf. He also cites the decision in Biju R.S and others v. Kerala State Election Commission and others [2009 (2) KHC 839], Varghese V.V. and another v. Kerala State Election Commission and another [2009 (3) KHC 42] and Mohandas K.P. v. State Election Commissioner, Tvm and another [2009 (4) KHC 935] to justify the order passed by the Election Commission.

Heard Sri.S.Sreekumar, instructed by Sri.Martin Jose.P, learned counsel for the petitioner, Sri.Mathew A. Kuzhalanadan, learned counsel appearing for the first respondent and Sri.Deepulal Mohan, the learned standing counsel appearing for the Election Commission.

On going through the pleadings of the writ petitioner and the first respondent herein before the Election Commission and also the order passed by the Election Commission it is clear that the entire issues in this case revolve around the applicability or otherwise of Section 3(1)(a) or 3(1)(b) of the Act or in other words, the question is whether the writ petitioner was the member of a party or a coalition. It is the specific case of the writ petitioner that the entire pleadings in the petition are based on a violation of Section 3(1)(a) of the Act, whereas, only the consequences under Section 3(1)(b) will apply to the writ petitioner as he is only an independent candidate in a coalition. The further question is whether the whip was issued to the independent member by the coalition in the manner prescribed. At this juncture it is relevant to extract the pleadings of the first respondent, the petitioner before the Election Commission are as follows:-

“3.The petitioner contested and won the election to the Paingottoor Grama Panchayat as the official candidates of Indian National Congress, herein after referred as INC, in official symbol “Hand” and is a constituent of United Democratic Front (UDF). The Respondent contested as an independent candidate supported by UDF.

After the election, both the petitioner and the respondent who were candidates of UDF became members of Panchayat and they had given sworn declaration before the Secretary, Paingottoor Grama Panchayat, showing their association with political party as INC member.

The said declaration given by the respondent to the Secretary as per Rule 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, wherein he affirmed that he is the independent candidate supported by INC which is a constituent of UDF.

On the basis of the same, the Secretary of Paingottoor Grama Panchayat prepared the register showing the political affiliation of the members and wherein also stated that the Respondent is an independent candidate supported by INC which is a constituent of UDF. The Grama Panchayat Secretary has issued details of the respondent and his Self declaration form also states that he belongs to an independent candidate supported by INC which is a constituent of UDF.

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14.The said whip (direction in writing) specifically directed the INC elected ward members which includes the respondent herein, to refrain from voting in the no-confidence motion moved against the President of the Panchayat and thus to defeat the motion on 15.09.2021.

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From the above facts it is clear that the respondent has withdrawn from the INC and UDF, also defied the valid direction given by the District President of INC and thus the respondent has voluntarily abandoned his membership from INC/UDF which fielded him as a candidate in the general election. He has voluntarily abandoned or given up his membership in INC, and joined in another party moving with the support of LDF in the Panchayat against the will of INC and the coalition, and casted his vote in the no-confidence motion against the President of the Grama Panchayat, thereby committed defection. To act against the party and voting the party whip (direction in writing) are against the will of the party and is disloyalty.

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Cause of action arose on 15.09.2021, the date on which the respondent supported the no-confidence motion moved by the LDF faction, who are the rival parties, against the direction issued by the Political party, acted against the whip (direction in writing) issued to him by the authorised party, and the date on which the Respondent has acted against the whip (direction in writing) and thereby expressly declared the voluntary giving up the membership and continuously thereafter at Paingottoor Grama Panchayat, which is within the jurisdiction of this Hon'ble State Election Commission.”

In the instance case, in both the cases there is a pleading that the petitioner is part of the UDF coalition, which is not disputed by him in his objection. His only contention appears to be that he was an independent candidate of the IUML and had not shown political allegiance to or political affiliation to the INC. His primary contention appears to be that there is no whip as defined in the Act and Rules, by the person competent to issue. As a matter of fact, the findings of the Election Commission are that even if there is no whip, there is ample evidence to show that the writ petitioner has by his conduct voluntarily given up the membership of the party under whose banner he was elected. The specific contention of the learned senior counsel for the writ petitioner is that he was never a member of any party and as such the finding that he has voluntarily given up the membership of the party cannot be sustained at all.

This is opposed by the learned counsel for the respondent submitting that going by the deeming provision which creates a fiction by which an independent candidate, who had contested the election with the support of a political party, is to be considered as a member of that political party even without the member joining the political party. For this, they relied on Exts.A1, X1 and X3 which shows that the writ petitioner was an independent member supported by INC in the UDF. Further, the writ petitioner had admitted the veracity of the entries in Exts.A1, X1 and A2 party affiliation register, and therefore even if the case of defined whip is accepted, there is ample proof to show that he had withdrawn from the coalition and had voted for the opposite front. That he had voted for the LDF is not in dispute as his only case is that there was no whip issued to him and he was not bound by the whip issued by the INC.

The very purpose of the Act is to disqualify a member who has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a whip/directions issued by a political party. The disqualification for voluntarily giving up the membership of one's party is not dependent on the violation of the whip. The grounds for disqualification are treated as distinct and not interlinked, therefore, even assuming that the writ petitioner's contention of having not received a whip by the competent person is accepted, there is proof to show that he had voluntarily withdrawn from the coalition of which he was a part and voted against a candidate belonging to his coalition. Under such circumstances, an inference can be drawn that the petitioner has withdrawn from the coalition. There is no explanation given by the petitioner who is admittedly a part of the UDF coalition for voting to oust the President of the UDF coalition and to enable the opposite front to come to power. As regards the contention regarding lack of plea as pointed out by the learned senior counsel that the entire petition proceeded on the basis that he is a member of a political party, the same going by the pleadings as well the objections in the writ petition clearly shows that he was a member of the UDF coalition which fact is not disputed even by the writ petitioner, as it is his case that he has not acted against the stand of the UDF. This averment in the objection shows that he wanted to be known as a member of the UDF coalition but all his acts were just the opposite.

Under such circumstances, I am not inclined to accept the argument of the learned senior counsel that his case is squarely covered by the case in Chinnamma Varghese (supra), more so, in view of the pleadings in the petition as well as the objection filed by the writ petitioner herein before the State Election Commission. The judgment in Chinnamma Varghese (supra), is clearly distinguishable as there was no plea in such case that the candidate therein was part of the coalition unlike, in the present case where there was a specific admission by the writ petitioner that he is part of the UDF coalition. The decision in Chinnamma Varghese (supra), revolves around the lack of proper pleadings, whereas in the instant case, there was a specific contention that he had withdrawn from the party and the coalition and that case was resisted by the writ petitioner saying that he has not left the UDF coalition.

Under the scheme of the Act, an independent candidate incurs a disqualification if the independent candidate belonging to a coalition as defined under the Act and being a member of such coalition either withdraws from the coalition subsequently or joins any other party or coalition. The facts of the case read with the pleadings and the evidence adduced and the fact that the writ petitioner had contested against a member of the UDF coalition and in fact defeated him, it has to be understood there was a clear shift of loyalty and such conduct of a member has to be inferred from the facts and circumstances of each case. As held by this Court in the judgment reported in Mathew Joseph v. Joseph John (2024 KHC 752) a member is identified as part of a political party based on the declaration given under the Rule 3(1) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, and that the very purpose of anti-defection law is to prevent switching over from one party to another or switching over allegiance by betraying the mandate of Electorate to the opposite coalition has to be treated as disqualification within the meaning of the Act and Rules. The declaration given that a member is a part of a coalition when betrayed and acts against the interest of the said coalition of which he was a part would certainly entail disqualification. As stated above there is no doubt that the petitioner did plead that he was part of the UDF coalition and further denied the averments made against him that he has switched over sides, thus stating that he still belongs to UDF coalition.

As held by the Division Bench in the decision reported in Sindhu Anilkumar v. Kerala State Election Commission, Thiruvananthapuram [2024 (2) KHC 193] the test is whether a member had given up his independent membership on which he was elected by the Electorate. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally, is to be determined on the appreciation of the materials on record. After being part of one coalition and switching over to the other which results in defeating the candidate of one's own coalition, a disqualification within the meaning of the Act and Rules is attracted.

In the instance case, it cannot be said that the finding of the Election Commission is in any way erroneous or based on inadmissible evidence or has omitted any admissible evidence. This Court in the exercise of its jurisdiction under Article 226 of the Constitution of India exercising the power of judicial review and not an appellate power is unable to hold that the order of the Commission is vitiated on any count.

For the above reasons, the writ petition is dismissed.