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2018 Supreme(Ker) 95

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, J.
Rama Bhaskaran – Petitioner
Versus
Kerala State Election Commission, Represented by its Secretary – Respondent
WP (C) Nos. 33299 & 33330 of 2017
Decided On : 28-02-2018

Advocates Appeared:
For the Petitioners: V.V. Asokan, K.I. Mayankutty Mather, Jose Joseph (Chemplayil).
For the Respondents: Murali Purushothaman, P. Haridas, P.C. Shijin, George Abraham Pachayil.

Headnote:

The Kerala Local Authorities Prohibitions of Defection Act, 1999- Section 3(1) (a)- The Constitution of India- Article 226-A political party goes before the electorate with a particular programme and it fields candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of the said Schedule and in particular, Para 2 (1) (a) proceed on the premise that political propriety and morality demand that if such a person after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the Legislature and go back before the electorate. The same yard stick is applied to a person, who is elected as an independent candidate and wishes to join a political party after the election

Statement of facts:

Writ petitions the common order dated 13.10.2017 of the Election Commission in O.P. No. 79 of 2015, O.P. No. 80 of 2015 and O.P. No. 81 of 2015 are impugned-Election to the Mallappuzhahassery Grama Panchayath, where, to the 13 seats to which election was held in November 2015, the United Democratic Front (UDF) won five seats, the Left Democratic Front (LDF) four seats, Bharatiya Janata Party (BJP) three seats and an Independent one seat- The elected members, then proceeded to hold the election to the post of President on 19.11.2015-The petitioner in W.P. (C) No. 33329 of 2017 is a person, who contested as a member of the JD (U), which formed part of the UDF coalition that was formed for the purposes of contesting the election- One Congress candidate abstained from the election meeting and the Kerala Congress candidate voted in favour of the petitioner- The election petitions came to be numbered as O.P. No. 79 of 2015, O.P. No. 80 of 2015 and O.P. No. 81 of 2015 respectively-The Congress Councillor (O.P. No. 81 of 2015) that the said person had not complied with the whip issued by his party and had not attended the election meeting- - He had voluntarily given up the membership of his party, and therefore, stood disqualified in terms of Section 3(1) (a) of the Kerala Local Authorities Prohibitions of Defection Act, 1999. As noted above, it is this order of the Election Commission that is impugned in W.P. (C) No. 33329 of 2017.

Finding of the court:

Contesting as a candidate for the post of President of the Panchayat, after being sponsored by the rival coalition, and emerging successful in the said election on the strength of votes polled by the said rival coalition, the petitioner stood disqualified, on the ground that, he had voluntarily given up the membership of his own political party, cannot be seen as unjustified. This is especially so because there is no material on record that would suggest that the political party, of which the petitioner was a member, had decided to act against the interests of the coalition of which it was a part while contesting the elections. I, therefore, find that the impugned order of the Election Commission does not call for any interference by this Court in these proceedings under Article 226 of the Constitution of India.

Result: Writ petitions dismissed.

JUDGMENT :

A.K. JAYASANKARAN NAMBIAR, J.

1. In all these writ petitions the common order dated 13.10.2017 of the Election Commission in O.P. No. 79 of 2015, O.P. No. 80 of 2015 and O.P. No. 81 of 2015 are impugned. These matters pertain to an election to the Mallappuzhahassery Grama Panchayath, where, to the 13 seats to which election was held in November 2015, the United Democratic Front (UDF) won five seats, the Left Democratic Front (LDF) four seats, Bharatiya Janata Party (BJP) three seats and an Independent one seat. The components of the UDF, which won the five seats, comprised of the Congress, which won three seats, Janada Dal (U) one seat and Kerala Congress one seat. Similarly, under the LDF, the Communist Party of India (Marxist) CPI (M) won three seats and the Communist Party of India (CPI) one seat. The elected members, then proceeded to hold the election to the post of President on 19.11.2015. It is not in dispute that there was no whip issued either by the UDF or by the JD (U). The petitioner in W.P. (C) No. 33329 of 2017 is a person, who contested as a member of the JD (U), which formed part of the UDF coalition that was formed for the purposes of contesting the election. It is stated that, while the UDF coalition fielded the 2nd respondent, who was a Congress candidate, as the candidate for the post of President, the petitioner also contested to the post of President and was subsequently elected based on the votes garnered in the election from the LDF Councillors, who voted in favour of the petitioner. One Congress candidate abstained from the election meeting and the Kerala Congress candidate voted in favour of the petitioner. As already noted, consequent to the petitioner being elected as a President, the election of the President was challenged by the 2nd respondent, who also sought disqualification of the petitioner along with the Congress Councillor who abstained from voting, as also the Kerala Congress candidate who voted in favour of the petitioner. The election petitions came to be numbered as O.P. No. 79 of 2015, O.P. No. 80 of 2015 and O.P. No. 81 of 2015 respectively. Through a common order dated 13.10.2017, the Election Commission found with regard to the Congress Councillor (O.P. No. 81 of 2015) that the said person had not complied with the whip issued by his party and had not attended the election meeting. The justification given by the said person, that he was prevented from attending the Election Meeting on account of an injury sustained by him, was disbelieved based on the evidence adduced, and the said person was held disqualified as a Councillor. In W.P. (C) No. 33330 of 2017, the said decision of the Election Commission is impugned by the Congress candidate concerned, who is the petitioner in the said writ petition. As regards the Kerala Congress Councillor, the Election Commission found, in the context of O.P. No. 80 of 2015, that the said person had violated the directions in a whip issued by the party, and although the councillor had set up a defence that she had received oral directions to the effect that she was to vote for the petitioner in W.P. (C) No. 33329 of 2017, the said version was not believed, based on the evidence adduced before the Election Commission. The said Councillor was also, therefore, disqualified and the order of disqualification is impugned in W.P. (C) No. 33299 of 2017 filed by the said person. As regards the petitioner in W.P. (C) No. 33329 of 2017, the Election Commission found in the context of O.P. No. 79 of 2015 that, although the JD (U) party had not issued any whip or direction that was disobeyed by the petitioner, his contesting the election for the post of President, against an understanding of the coalition, of which his party was an integral part, and further, his emerging successful in the election on the basis of a sponsorship by the opposite party, effectively meant that he had voluntarily given up the membership of his party, and therefore, stood dis




























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