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2020 Supreme(Ker) 775
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Muhamed Mustaque, J.
Shameena Ibrahimkutty W/o. Ibrahimkutty- Petitioner
Versus
The Kerala State Election Commission And Ors. – Respondents
WP(C).No.10956, 10838, 10839, 10848, 10955 OF 2016
Decided On : 10-11-2020
Advocate Appeared:
For the Petitioner: Sri.T.Krishnanunni (Sr.), Sri.M.Devesh, Sri.K.C.Kiran, Smt. Meena.A., Sri.Vinod Ravindranath, Sri.Vinay Mathew Joseph, Advs.
For the Respondent: Sri.T.B.Hood, Smt.M.Isha, Sri. Murali Purushothaman, Advs. Sc
IMPORTANT POINTS:
Complete denial of service of registered whip sent to the other members. In the absence of production of acknowledgement due or returned postal article with acknowledgement due, this Court have to hold that there was no service of whip on the other members except M.A.M.Muneer.
Headnote:
Kerala Local Authorities (Prohibition of Defection) Act, 1999;; The Defection Act- Section 3(1)(a);; The Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000- Rule 4(2) ;; The Indian Post office Act 1898 ;; The Indian Post Office Rules, 1933- Rule 64(1) - -If no payment for acknowledgement due is proved, no presumption would arise as sending through registered post along with acknowledgment due is requirement of rule -Notice of no-confidence motion was also affixed on the notice board of the Block Panchayat-If there is no valid service of the whip-The members were aware of such whip, it would also attract the first limb related to voluntarily giving up of membership.
Statement of facts:
The petitioners in all these writ petitions are the members of Edathala Grama Panchayat based on an election held in the year 2010. They were ordered to be disqualified by a common order of the Kerala State Election Commission dated 27.1.2016. This order is arising from different petitions filed by one A.A.Mayin, the second respondent in all these writ petitions. The petitioners herein were ordered to be disqualified for contesting as candidates in an election to any local authorities for a period of six years from the date of the order, i.e. 27.1.2016.
Finding of the court:
Under Section 157(3) of the Panchayat Raj Act, the elected member shall be present at the time appointed by the Officer for convening the meeting of no-confidence motion. Under Section 157(6), quorum required for the meeting will be one half of the elected members of the Panchayat. M.A.M.Muneer was not there at the appointed time. This itself would establish that he defied the whip and, therefore, both limbs under Section 3(1)(a) attracted for disqualification of M.A.M.Muneer-Affirm the findings of the Election Commission against M.A.M.Muneer.
-They can be disqualified on the ground relatable to violation of the whip, nevertheless, they are liable to be disqualified on voluntarily giving up their membership.
Result: Writ petitions are dismissed.
JUDGMENT :
The petitioners in all these writ petitions are the members of Edathala Grama Panchayat based on an election held in the year 2010. They were ordered to be disqualified by a common order of the Kerala State Election Commission dated 27.1.2016. This order is arising from different petitions filed by one A.A.Mayin, the second respondent in all these writ petitions. The petitioners herein were ordered to be disqualified for contesting as candidates in an election to any local authorities for a period of six years from the date of the order, i.e. 27.1.2016.
2. Since common question on facts and law is involved, that too arising out of a common order, it is appropriate to dispose these cases by a common judgment. The exhibits referred to in this judgment are the exhibits referred to by the Election Commission in the common order.
3. The petitioners and A.A.Mayin were elected to the Grama Panchayat in the election contested with the party symbol of Congress. Indian National Congress (INC) was part of a coalition called United Democratic Front (UDF). The other constituent of UDF was Muslim League. INC secured eight seats and Muslim League secured two seats; rival political party, Left Democratic Front (LDF) secured six seats; another party, Bharatiya Janata Party got three seats and; two independent members were also elected; totaling 21. UDF decided to form a Board with the support of independents.
4. It appears that an agreement was arrived among the parliamentary party of Congress under the directives of the District Congress and the State Congress party leadership to share the total period of term of the Board between the members who secure highest and second highest support. Out of the eight members, four members supported M.A.M.Muneer and; three members supported A.A.Mayin. Accordingly, the first term was assigned for M.A.M.Muneer as the President. The second term was proposed to be assigned for the presidentship of A.A.Mayin.
5. It seems that M.A.M.Muneer refused to step down after the first term. District Congress Committee (DCC) President issued specific directions to M.A.M.Muneer to step down on 24/10/2013 and 27/12/2013. He refused. The Parliamentary Party of INC was convened by DCC President on 10/5/2014. Other petitioners who were the members of the Panchayat, elected on congress ticket, also abstained from attending the meeting. Again the KPCC General Secretary, State Congress, sent a letter to M.A.M.Muneer to step down on or before 14/5/2014. M.A.M.Muneer refused and he was suspended on 5.6.2014.
6. Taking note of the circumstances as above, Kerala State Committee of Congress convened a joint meeting on 18.8.2014 of the parliamentary party members and political party leaders. It appears that, in that meeting M.A.M.Muneer refused to accede to the request made by the leaders. Again the State Congress sent a letter to M.A.M.Muneer on 23/9/2014 calling for his explanation for non compliance of the earlier directions. Since M.A.M.Muneer continued to disobey the party directives, in the meeting of the parliamentary party members, the District Congress President issued a direction on 5/12/2014 to support the move of no-confidence motion against M.A.M.Muneer.
7. No confidence motion was tabled on 12/12/2014 at 10 a.m. Notice was published on the notice board of the Grama Panchayat on 4/12/2014. Notices were issued to the members on 3/12/2014.
8. The petitioners in these writ petitions absented from the meeting scheduled for moving the no-confidence motion.
9. The no-confidence motion could not be taken up for want of quorum. It seems that the opposition party members also remained absent. Setting out the allegations as above, A.A.Mayin approached the Election Commission on 27/12/2014 for declaring the petitioners as disqualified under the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as the 'Defection Act').
10. The case put forward by M.A.M.Muneer was that he was suspended from the pa
