| SMT. JESSIE RAJU Vs. THE COMMUNIST PARTY OF INDIA |
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 28TH DAYOF JUNE 2017/7TH ASHADHA, 1939
WP(C).No. 17751 of 2017 (T)
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PETITIONER(S) :
-------------------------
SMT. JESSIE RAJU, W/O.RAJU
AGED 46 YEARS, POOKKOTTU HOUSE,
RAMAMANGALAM P.O,PIN-686 663.
BY SRI.S.SREEKUMAR (SENIOR ADVOCATE)
ADVS. SRI.P.MARTIN JOSE
SRI.R.GITHESH
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT(S) :
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1. THE COMMUNIST PARTY OF INDIA,
ERNAKULAM DISTRICT COUNCIL,
CHADAYANMURI SMARAKAM, KALOOR,
ERNAKULAM, PIN-682 017,
REPRESENTED BY ITS SECRETARY.
2. THE KERALA STATE ELECTION COMMISSION,
THIRUVANANTHAPURAM -695 001.
R1 BY ADVS. SRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.ASHWIN SETHUMADHAVAN
SMT.B.MEERA
SRI.S.SABARINADH
R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, S.C
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-06-2017, THE COURT ON 28-06-2017 DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 17751 of 2017 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS & ANNEXURES :
EXHIBIT P1 TRUE COPY OF PETITION AS O.P.NO.3 OF 2016 DATED 26.11.2015
FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT IN O.P.NO.3OF 2016
DATED 02.03.2016 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE REGISTER
SHOWING THE POLITICAL AFFILIATION OF MEMBERS OF
THE PANCHAYAT FOR THE PERIOD 2010-2015
EXHIBIT P4 TRUE COPY OF THE ORDER IN O.P NO.3 OF 2016
DATED 24.05.2017 OF THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF NOTIFICATION DATED 05.06.2007 ISSUED BY
THE 2ND RESPONDENT.
ANNEXURE A: TRUE COPY OF INTERIM ORDER DATED 29.05.2017 IN
W.P(C).NO. 17751 OF 2017 OF THIS HON'BLE COURT.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF THE UNDERTAKING GIVEN BY
THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT R1(B): TRUE COPY OF THE NOMINATION PAPER DATED 05.10.2010.
EXHIBIT R1(C): TRUE COPY OF THE TRUE EXTRACT OF THE REGISTER.
EXHIBIT R1(D): TRUE COPY OF THE NOMINATION PAPER FILED BY
THE PETITIONER.
EXHIBIT R1(E): TRUE COPY OF THE LETTER DATED 16.10.2015 FROM
THE PRESIDENT, ERNAKULAM DCC.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
"C.R."
K. Vinod Chandran, J
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W.P.(C).No.17751 of 2017-T
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Dated this the 28th day of June, 2017
JUDGMENT
The writ petition is filed against the order of the Kerala
State Election Commission [for brevity "Election Commission"],
Exhibit P4, which held that the writ petitioner had defected as
provided under Section 3(1)(b) of the Kerala Local Authorities
(Prohibition of Defection) Act, 1999 ["for brevity "Act of 1999"] and,
hence, became subject to disqualification. It was further declared
that she was disqualified to be a member of the Ramamangalam
Grama Panchayat as provided by Section 3(1)(b) and also
disqualified for contesting as candidate in an election to any local
authority for a period of six years, as provided by Section 4(3) of
the Act.
2. The brief facts to be noticed are that the petitioner
contested the election to the Council of the Panchayat for the
period 2010-15 as an independent candidate, supported by
Communist Party of India [for brevity "CPI"] of the Left Democratic
WP(C) No.17751 of 2017 - 2 -
Front coalition. The petitioner won such election and was
continuing in the Council and towards the expiry of the period of
the Council, election notification was issued on 07.10.2015 with
the last date notified for filing nomination being 14.10.2015. The
petitioner filed a nomination on 14.10.2015, within the validity
period of the Council of 2010-2015, as a candidate of Indian
National Congress [for brevity "INC"] with United Democratic Front
[UDF] coalition. Scrutiny was conducted on 15.10.2015 and the
petitioner having not withdrawn the nomination on 17.10.2015, it
was accepted. The period of the Council in which the petitioner
was a member, expired on 31.10.2015 and the election for the
next Council was held on 05.11.2015. The votes were counted, the
results declared on 07.11.2015 and the petitioner was sworn in as
a Member for the next term of 2015-2020 on 12.11.2015. The
petitioner was then elected as President of the Panchayat on
19.11.2015. An Original Petition was filed before the Election
Commission on 26.11.2015 with a delay of 29 days. The delay was
condoned on 06.01.2016 and the petitioner disqualified by the
impugned order passed on 24.05.2017.
WP(C) No.17751 of 2017 - 3 -
3. The learned Senior Counsel relied on the statutory
provisions to assail the order. The provisions do not commend the
disqualification of the petitioner is the short argument, for reason
of the term of the Council in which she is alleged to have
committed an act of crossing the floor had expired and the
Election Commission having been moved after the expiry of the
term.
4. The 1st respondent, who was the petitioner before
the Election Commission, contended that the petitioner, who was a
member of the Committee elected as a part of the LDF coalition,
supported by the CPI, had committed defection, by reason of the
nomination filed as a candidate of the INC during the term of the
earlier Committee, under Section 3(1)(b) of the Act of 1999.
5. The learned Senior Counsel appearing for the
petitioner would take me through the relevant provisions of the Act
of 1999 and the Kerala Local Authorities (Disqualification of
Defected Members) Rules, 2000 [for brevity "Rules of 2000"] to
urge the contention of the Election Commission having no
jurisdiction for reason of the term of the Committee having expired
WP(C) No.17751 of 2017 - 4 -
when the petition was filed. It is argued that the words employed in
Section 3(1)(b) of the Act of 1999; of an independent member
belonging to any coalition withdrawing from such coalition or
joining any political party or any other coalition being disqualified
for continuing as a member of that local authority specifically
indicates that the disqualification is only with reference to the
membership of the Committee in office for a valid term of five
years and cannot be extended to a subsequent period for which a
fresh election is conducted. It is also argued that sub-section (3) of
Section 4 of the Act of 1999 indicates that the disqualification for
contesting as a candidate in an election to any local authority
would be for a period of six years from the date of the decision of
the Election Commission and not prior to that. The petitioner's
election prior to the order cannot attract the disqualification.
6. It is also urged that Rule 4A of the Rules of 2000
indicates the necessity of filing of an application within fifteen days
from the date of the alleged disqualification. The petitioner having
filed the nomination on 14.10.2015, which is alleged to be the
ground for disqualification; a petition before the Election
WP(C) No.17751 of 2017 - 5 -
Commission could have been filed within fifteen days, i.e., on or
before 29.10.2015, and in that context the petition would have
been filed within the period of validity of the earlier Committee. The
petition having been filed after the limitation period, when the
petitioner ceased to be a Member of the earlier Committee, the
petition itself is not maintainable is the argument. The learned
Senior Counsel would also rely on a decision of a learned Single
Judge, reported in George P.C. v. Hon'ble Speaker and Another
[2016 (2) KHC 137 = 2016 (1) KLT 1004].
7. The learned Standing Counsel for the Election
Commission would draw a distinction between the disqualification
which is co-terminus with the term of office of a Committee and
which extends beyond the term of office. The alleged
disqualification is one of inability to continue as member of the
Council and to contest an election; which extends to a period of six
years, even beyond the term of the elected Committee. The
learned Standing Counsel would rely on the decisions reported in
Kunjappan v. Rajan [2004 KHC 100 = 2004 (1) KLT 536],
Vinodkumar v. Faizal [2010 (1) KLT 35], Krishna Kumar.C. v.
WP(C) No.17751 of 2017 - 6 -
Kerala State Election Commission, Tvm. and Another [2010 (4)
KHC 90 = 2010 (4) KLT 84] and Pavithran v. Nandakumar [2015
(4) KLT 900] to drive home the distinction drawn so as to sustain
the order of the Election Commission. With respect to the ground
of limitation urged, the learned Standing Counsel places reliance
on the decision in Rajendranath v. Gangadas and Others [AIR
1979 SC 566], which holds that when there is a period of limitation
provided and the authority also empowered to condone the delay;
on such condonation being effected, the period of limitation does
not stand extended; but, however, the proceedings are deemed to
have been filed within the limitation period.
8. Section 3(1)(b) of the Act of 1999 is extracted
hereunder:
"3. Disqualification on ground of Defection.--
(1) Notwithstanding anything contained in the Kerala
Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala
Municipality Act, 1994 (20 of 1994), or in any other law
for the time being in force, subject to the other
provisions of this Act,--
(a) xxx xxx xxx
(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
WP(C) No.17751 of 2017 - 7 -
member, contrary to any direction in writing issued by a
person or authority authorised by the coalition in its
behalf in the manner prescribed, votes or abstains from
voting,-
xxx xxx xxx
(c) xxx xxx xxx
he shall be disqualified for being a member of that local
authority".
9. The disqualification alleged herein is admitted
insofar as the petitioner, who was an independent Member
belonging to the LDF coalition during the term of the Committee,
submitted a nomination as a candidate of the INC with UDF
coalition. The petitioner hence withdrew from the coalition in
whose platform she was elected and was continuing as Member
and joined another political party in a different coalition. This
clearly invites a disqualification and there can be no dispute on the
said count.
10. The argument of the petitioner is that the term of
the Committee, in which the alleged act was occasioned, being
over, she can no longer considered to have been disqualified to sit
in the next committee to which a fresh election was held. The
WP(C) No.17751 of 2017 - 8 -
disqualification can only be with reference to the term of the
Committee; which is for five years. Herein it is to be noticed that
the disqualification as found by the Election Commission under
Section 4(3) of the Act of 1999 extends to six years from the date
of decision of the Election Commission. As rightly pointed out by
the learned Standing Counsel for the Election Commission, the
disqualification is not co-terminus with the term of the Committee
and even extends beyond that period. It is also pertinent that the
Act and the Rules does not speak of the member being
disqualified from the Committee for a particular term and speaks of
disqualification in being continued as a member and for a further
period of six years being disabled from contesting an election.
11. Kunjappan held that a person who was disqualified
to hold office for a period cannot be considered to be a person
who is qualified to contest the election. Vinodkumar was a case
in which the petitioner sought for a declaration from the Election
Commission that in view of the disqualification order passed by the
Election Commission there should be a further declaration that the
respondent is disqualified and not qualified to be chosen in the
WP(C) No.17751 of 2017 - 9 -
Panchayat at any level in view of Sections 29(f) and 34(1)(n) of the
Kerala Panchayat Raj Act, 1994. This Court found that there is no
such requirement since, the effect of disqualification under Section
25(1)(q) is automatic. Both these decisions would not apply in the
present case.
12. Krishna Kumar.C. can be relied upon to fortify the
submission of the learned Standing Counsel for the Election
Commission that the disqualification incurred by cessation of office
is not co-terminus with the term of office of the Committee, when it
is incurred under Section 3(1)(b) of the Act of 1999. Pavithran
was a case in which the Election Commission had taken
considerable time in considering the petition filed before it. By that
time, the term of office of the Committee, in which the
appellants/petitioners were Members, was over and six years had
elapsed from the date of the alleged act which invited
disqualification. The Division Bench held that the disqualification
would apply for six years from the date of decision of the Election
Commission.
WP(C) No.17751 of 2017 - 10 -
13. Much reliance has been placed on George P.C. by
the learned Senior Counsel appearing for the petitioner. Therein,
proceedings were taken by the Speaker of the Legislative
Assembly to disqualify a Legislator. Just prior to the date of
decision, the Legislator made a request for resignation. The
request made by the Legislator for resignation was kept in
abeyance and an order passed of disqualification. The order was
dated 13.11.2015. The Legislator challenged the said order before
this Court. This Court found that a Legislator has a Constitutional
right to seek resignation; which has to be necessarily accepted by
the Speaker unless it is found to be not voluntary or genuine. In
the said case, the Legislator had personally handed over the
resignation to the Speaker and there was admittedly no order
passed in the said resignation. At the time of hearing, the records
were called for, on perusal of which, the Court found an order
rejecting the application for resignation on the ground that it was
not voluntary or genuine, without any reasons assigned as to how
such an assumption was arrived at by the Speaker.
WP(C) No.17751 of 2017 - 11 -
14. It was also found that the order disqualifying the
Legislator referred to the request for resignation and indicated that
the same was kept pending. The rejection of the application for
resignation was also on the same day, i.e., 13.11.2015 but after
the order on disqualification. It was in such circumstance that the
Court held that the resignation is deemed to have been accepted
by the Speaker on 12.11.2015 when it was handed over to the
Speaker since the subsequent order dated 13.11.2015; rejected as
not genuine or voluntary was not supported by reasons. The
Legislator having resigned, there was no question of any
disqualification being considered, was the finding.
15. This Court does not find any identity of facts in
George P.C. and instant case. Further the disqualification, in that
case under the Tenth Schedule of the Constitution was co-
terminus with the term of the legislature. In the teeth of the
applicable rules here, if the petitioner had resigned from the
membership and had contested under the banner of INC, then
there would have been no question of disqualification. The
decision in George P.C. does not help the petitioner.
WP(C) No.17751 of 2017 - 12 -
16. It would be too technical a view to hold that the
disqualification alleged against a member would have to be
agitated in the term of office of the Committee in which such
disqualification was occasioned. If that be so, towards the expiry of
the term of office the Committee members could indulge in all sort
of defection which if not agitated within the term of office, would be
rendered useless. There is no such requirement in the rules and
the limitation is only for a specific period with the authority
empowered to condone the delay. The decision in Rajendranath
is apposite in so far as the condonation having the effect of
deeming the petition to have been instituted within time.
17. The disqualification is a consequence flowing under
Section 3 & 4 of the Act of 1999. Inter alia an independent
member belonging to any coalition when withdrawing from such
coalition and joining any other political party of any other coalition,
he shall be disqualified to be member of that local authority. This
does not confine the bar of membership to a particular term of
office or to the term of office in which such act is alleged and
found. Section 4(1) empowers the State Election Commission to
WP(C) No.17751 of 2017 - 13 -
decide on the question as to whether a member of a local authority
has become subject to disqualification or not when such a dispute
arises. Sub-section (3) of Section 4 is the consequence of a
decision of disqualification arrived at by the Election Commission.
There are two consequences. One, the member would cease to
be a member from the date of decision and would be disqualified
from contesting an election to any local authority for six years. The
petitioner was a member of the local authority when the decision
came and that alone attracts the disqualification from being
continued as a member. By the mere fortuitous circumstance that
before a decision came an election was conducted would not
absolve the member of the rigour of disqualification, which again is
a corollary to the principle laid down by the Division Bench in
Pavithran, that even if six years have elapsed from the time of the
alleged act of disqualification there would be a further
disqualification for six years from the date of decision. Any other
interpretation would do violence to the avowed intention of the
Legislature and the plain language used in the statute. Just as
Pavithran found that the legislature would not waste its words and
WP(C) No.17751 of 2017 - 14 -
use any in vain; the Court cannot add or supply words. If the
contention of the petitioner is accepted then words would have to
be added to the provision to make the disqualification of the
member: for the term then in office. The Legislature took into
account the laws delays while prescribing the disqualification for
a specific period extending beyond the term of office of a Council.
The intention clearly is to disqualify a member who has defected
from continuing in that committee and in the subsequent
committee too, since the disqualification runs for six years, while
the term of the committee is 5 years.
The writ petition would stand dismissed, leaving the
parties to suffer their respective costs.
Sd/-
K.Vinod Chandran
Judge.
vku/-
[ true copy ]
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