present: shri.k.sasidharan nair, state … the kerala state election commission, thiruvananthapuram...

BEFORE THE KERALA STATE ELECTION COMMISSION,

THIRUVANANTHAPURAM

PRESENT: SHRI.K.SASIDHARAN NAIR, STATE ELECTION COMMISSIONER

Thursday, the 19th

day of March 2015

O.P.Nos.40/2014, 41/2014, 42/2014, 43/2014 AND 44/2014

O.P.No.40/2014

Petitioner : Rajendran.G,

S/o Gangadharan,

Sivamangalam,

Pattamthuruthu P.O., (via) Perinadu

Kollam District. PIN 691 601.

Member, Ward No.03,

Mantrothuru Grama Panchayat

(By Adv. Panambil S.Jayakumar)

Respondent : Vijayan.A,

Member, Ward No.01,

Mantrothuruthu Grama Panchayat,

Kollam District, PIN-691 502.

(By Adv. S.K.Vinod)

O.P.No.41/2014

Petitioner : Rajendran.G,

S/o Gangadharan,

Sivamangalam,



Member, Ward No.03,



2

Respondent : Sujatha.A.,

Member, Ward No.11,



(By Adv. S.K.Vinod)

O.P.No.42/2014

Petitioner : Rajendran,

S/o Gangadharan,

Sivamangalam,



Member, Ward No.03,



Respondent : Sobha,

Member, Ward No.09,



(By Adv. S.K.Vinod)

O.P.No.43/2014


S/o Gangadharan,

Sivamangalam,



Member, Ward No.03,



3

Respondent : Radhakrishnan,

Member, Ward No.08,



(By Adv. S.K.Vinod)

O.P.No.44/2014


S/o Gangadharan,

Sivamangalam,



Member, Ward No.03,



Respondent : Subramanian.P,

Member, Ward No.12,



(By Adv. S.K.Vinod)

These petitions having come up for hearing on the 11th day of February

2015, in the presence of Adv. Panambil S.Jaya Kumar for the petitioner and

Adv. S.K.Vinod for the respondents and having stood over for consideration to

this day, the Commission passed the following.

COMMON ORDER

These are petitions filed under Section 4(1) of the Kerala Local Authorities

(Prohibition of Defection) Act for declaring that the respective respondents have

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become subject to disqualification for being members of Mantrothuruthu Grama

Panchayat. Since these petitions have been filed by a common petitioner and

common questions of law and facts arise for consideration in all these cases, they

have been taken up jointly and O.P.No.40/2014 is treated as the main case.

2. The short facts are as follows,- The petitioner and respondents have

contested in various wards of Mantrothuruthu Grama Panchayat as candidates of

Indian National Congress in the General Election held in October 2010 and were

elected as members. Smt.S.Sobha belonging to Congress party was elected as

President and she was ousted from that post by passing a no confidence motion

on 24.04.2014. Fresh election to the post of President was scheduled to be held

on 19.05.2014. The Congress party as well as its parliamentary party

unanimously decided to field Smt.Achiyamma Elsi Samuel as the candidate to

the post of President. A meeting of the Parliamentary party of all the members

belonging to Congress party was held at the DCC Office, Kollam on 18.05.2014

in the presence of Sri. M.M.Hassan, Vice President of KPCC, Sri.Sooranadu

Rajasekharan and Sri.Pratapa Varma Thampan, DCC President. The decision to

field Smt. Achiyamma Elsi Samuel was taken in that meeting unanimously. The

DCC President had given written directions to all the members including the

respondents to vote in favour of Smt.Achiyamma Elsi Samuel in the election

scheduled on 19.05.2014. But in violation of the said Direction, Smt.Sujatha the

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respondent in O.P.No.41/2014 proposed the name of the respondent in

O.P.No.42/2014 and it was supported by the respondents in O.P.No.40/2014 and

the respondent in O.P.No.42/2014 had contested against the official candidate. In

the first phase of election, all these respondents voted in favour of the respondent

in O.P.NO.42/2014 and thus she secured 5 votes whereas Smt.Achiyamma Elsi

Samuel and another candidate belonging to LDF secured 4 votes each.

Smt.Achiyamma Elsi Samuel was ousted after the draw of lots and in the next

phase of election, these respondents had abstained from voting which resulted in

the victory of Smt.Thankamani Sasidharan a member belonging to LDF. The

conduct of the respondents in disobeying the direction of the party and voting in

favour of a candidate who was not authorized by the party was only with a view

to help the rival party to get the post of President and it is a clear case of

defection which invites disqualification. The respondents had voluntarily given

up their membership from the party and they also had violated the whip issued by

the party. Hence these petitions.

3. The respondents have filed objections raising common contentions

which are in short, as follows,- The petitions are not maintainable either in law

or on facts. It is true that the President of the Mantrothuruthu Grama Panchayat

was ousted on account of passing a no confidence motion on 24.04.2014. The

said no confidence motion was supported by the petitioner and two other

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members belonging to Congress party along with LDF members. But the

Congress party had decided to defeat the said no confidence motion and issued

whip to all the Congress members to vote against the same. But the petitioner

and two other members belonging to Congress party had purposefully disobeyed

the said direction and decision of the party and ousted the President by joining

with the LDF members. Therefore fresh election was notified to the said post

and the same was scheduled on 19.05.2014. The allegation that the Indian

National Congress and its parliamentary party have unanimously decided to field

Smt.Achiyamma Elsi Samuel as official candidate of the party is totally false.

No such decision was taken. No meeting was held at the DCC office on

18.05.2014 in the presence of Sri.M.M.Hassan, Sri.Sooranadu Rajasekharan and

Sri.Pratapa Varma Thampan and no decision was taken in any such meeting. No

direction was given by the DCC President or the Congress party to vote in favour

of Smt.Achiyamma Elsi Samuel and no whip was received by the respondents in

respect of the election held on 19.05.2014. So the respondents have chosen to

vote in favour of the candidate of their option. The respondents have not

disobeyed any direction of the party nor voluntarily given up their membership

from the party. These petitions are filed only as a counter blast to the petitions

filed as O.P. Nos. 28/2014, 29/2014 and 30/2014 and these petitions are only to

be dismissed.

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4. The evidence consists of the oral depositions of PWs1 to 5, RW1 and

Exts.P1 to P12.

5. Both sides were heard

6. The following points arise for consideration;

(i) Whether the petitions are not maintainable?

(ii) Whether Smt.Achiyamma Elsi Samuel had contested as the official candidate of Congress party in the election to

the post of President held on 19.05.2014?

(iii) Whether the Kollam DCC President had issued direction to the respondents to vote in favour of Smt.Achiyamma

Elsi Samuel in the election held on 19.05.2014?

(iv) Whether the respondents have voluntarily given up their membership from the party or disobeyed the direction

issued by the party in respect of election to the post of

President held on 19.05.2014 as alleged?

(v) Whether the respondents have become subject to disqualification for being members of Mantrothuruthu

Grama Panchayat?

(vi) Reliefs and costs?

7. POINT No.(i) : These are petitions filed under Section 4(1) of the

Kerala Local Authorities (Prohibition of Defection) Act, (hereinafter referred to

as the Act). According to the common petitioner, the respondent in

O.P.No.42/2014 contested against the official candidate of Congress party in the

election to the post of President held on 19.05.2014 and voted in favour of that

respondent by disobeying the direction and decision of the Congress party which

8

resulted in defeating the official candidate of Congress party and thus they have

committed defection. Section 3(1)(a) of the Act states that if a member of local

authority belonging to any political party voluntarily gives up his membership of

such political party, or if such member, contrary to any direction in writing issued

by the political party or by a person or authority authorized by it in this behalf in

the manner prescribed, votes or abstains from voting in an election to the post of

President, Vice President Standing Committee Chairman of its members or on a

no confidence motion against any of them except a Standing Committee member,

then he shall be disqualified for being a member of that local authority. Section

4(1) of the Act state that if any question arises as to whether a member of a local

authority has become subject to disqualification under the provisions of this Act,

a member of that local authority or the political party concerned or a person

authorized by it in this behalf can file a petition before the State Election

Commission for decision. In the light of the rival claims, a question arises as to

whether the respondents have become subject to disqualification as provided by

Section 3(1)(a) of the Act. The petitioner, being a member of the same

Panchayat in which the respondents also are members, is fully competent to file

the petitions. Moreover the petitions are seen to have been filed within the time

limit prescribed under Rule 4A(2) of the Kerala Local Authorities

(Disqualification of Defected Members) Rules. No other specific contentions are

9

raised by the respondents so as to challenge the maintainability of these petitions.

Hence I find that the petitions are maintainable. The point is answered

accordingly.

8. POINT No.(ii)to (vi): Since common questions of law and facts arise

for consideration in all these points, they are taken up together for brevity and

convenience. Certain facts are note in dispute. Out of the 13 wards in the

Mantrothuruthu Grama Panchayat, the Congress party alone secured 9 seats and

the CPI(M) secured 4 seats. After General Election Smt.S.Sobha belonging to

Congress party was elected as President. She was removed from the post of

President on account of passing the no confidence motion moved against her by

the petitioner and two others along with LDF members. For which the

respondent in O.P.No.43/2014 filed O.P.Nos.28/2014, 29/2014 and 30/2014

against this petitioner and two others. In the subsequent election to the post of

President scheduled on 19.05.2014, it is alleged that the Congress party as well as

its parliamentary party had decided to field Smt.Achiyamma Elsi Samuel and the

DCC President had issued direction to all the Congress members including these

respondents to vote in her favour and by disobeying that decision and direction,

the respondent in O.P.No.42/2014 contested against her and all the respondents

voted in her favour and thereby they have voluntarily given up their membership

from the party and also violated the whip issued by the party. The petitioner has

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been examined as PW1. His chief examination is by way of an affidavit,

reproducing all the allegations contained in the original petition. He has deposed

that a Congress parliamentary party of this Panchayat was convened at the DCC

office on 18.05.2014 in the presence of Sri.M.M.Hassan, Sri.Sooranad

Rajasekharan and Sri.Pratapa Varma Thampan, the DCC President and certain

other leaders and in that meeting it was decided to elect Smt.Achiyamma Elsi

Samuel as President and the DCC President had issued direction in writing in this

behalf. He has specifically stated that the said directions containing his signature

and seal was served to all the nine Congress members and the said members had

acknowledged the receipt by putting the signatures in the copies of the said

direction. He has further deposed that by disobeying the direction the

respondents have voted in favour of the respondent in O.P.No.42/2014 and thus

the official candidate and the LDF secured four votes each and in the draw of

lots, the official candidate was ousted and in the next phase of election a member

belonging to LDF found victory. Exts.P1 to P5 are the declarations filed by the

respondents as provided by Rule 3(2) of the Kerala Local Authorities

(Disqualification of Defected Members) Rules. Ext.P6 is the record maintained

under Rule 3(1) of the Kerala Local Authorities (Disqualification of Defected

Members) Rules wherein also the respondents are shown to have been elected as

members belonging to Congress party. In all these documents they have stated

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that they are elected as members belonging to Congress party. Of course these

documents are not in dispute and the respondents have admitted that they were

elected as members belonging to Congress party. Ext.P8 is the notice given by

the Returning Officer to the petitioner in respect of the election to the post of

President scheduled on 19.05.2014 and Ext.P9 is the copy of the minutes of the

said election meeting. Ext.P7 is stated to be the photo copy of the direction in

writing issued by the DCC President to the petitioner directing him to vote in

favour of Smt.Achiyamma Elsi Samuel in the election Schedule on 19.05.2014

and Ext.P10 is stated to be the photo copy of such a direction issued to

Smt.O.Valsala and Ext.P12 is stated to be the direction issued by the DCC

President to Smt.Achiyamma Elsi Samuel. In cross examination PW1 has

admitted that he and two others had voted in favour of the no confidence motion

moved against the then President and thus she was removed from that post for

which O.P.Nos.28/2014, 29/2014 and 30/2014 are pending against them. It was

suggested to PW1 in cross-examination that no meeting was convened on

18.05.2014 at the DCC office and that no direction in writing was given by the

DCC President to vote in favour of Smt.Achiyamma Elsi Samuel which PW1

denied and stated that such a meeting was held and direction was issued by the

DCC President. It was also suggested to PW1 in cross-examination that no

decision was taken by the Congress party in any meeting to elect

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Smt.Achiyamma Elsi Samuel as President which also PW1 denied. It was then

further suggested to PW1 that these cases are filed as a counter blast to the cases

filed as O.P.Nos.28/2014, 29/2014 and 30/2014 which also PW1 denied.

9. PW2 is another member of this Panchayat and she also has deposed that

the meeting of the Parliamentary party was held at DCC Office on 18.05.2014 in

the presence of Sri.M.M.Hassan, Sri.Sooranadu Rajasekharan and Sri.Pratapa

Varma Thampan, DCC President and all the Congress members participated in

that meeting and Smt.Achiyamma Elsi Samuel was decided as the candidate for

the post of President and that the DCC President had issued direction in writing

in this behalf to all the members. Ext.P10 is stated to be the photo copy of the

whip received by her in respect of the above election. PW2 has also deposed that

the respondents have disobeyed the direction and decision of the party by note

voting in favour of Smt.Achiyamma Elsi Samuel and so they are no more

members of the party. In cross-examination it was suggested to PW2 that the

name of Smt.Achiyamma Elsi Samuel is seen erased in the original and it has

been re-written to which PW2 stated that a mistake crept in one letter and so the

name was erased and re-written. PW2 has stated that Ext.P10 was written by the

office Secretary and she did not see while writing the same. It was suggested to

PW2 that Ext.P10 was not a whip issued by the DCC President and it has been

fabricated on a signed blank letter pad which also PW2 denied. It was also

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suggested to PW2 that no meeting was held on 18.05.2014 in the DCC office

which PW2 denied. She has admitted that there was minutes for the said

meeting. PW2 has also admitted that in the second phase of election, the

respondent in O.P.No.42/2014 and one Thankamani Sasidharan belonging to

LDF candidate contested and she along with the petitioner had voted in favour of

the LDF candidate and there was no decision by the party to vote in favour of an

LDF candidate. PW2 has further deposed that the DCC President had sent

mobile messages to the respondents in favour of Smt.Achiyamma Elsi Samuel. It

was put to PW2 in cross-examination whether she produced the records relating

to the mobile messages to which she agreed to produce the same.

10. PW3 is Sri.M.M.Hasan, KPCC Vice President and he has deposed that

a complaint from the Mantrothuruthu Congress Mandalam Committee was

received by the KPCC President and that was entrusted with him by the KPCC

President and he was authorized to enquire about the same and accordingly a

parliamentary party meeting of the Panchayat was convened on 18.05.2014 at the

DCC office and all the nine Congress members attended that meeting and after

discussion it was decided to elect Smt.Achiyamma Elsi Samuel as President and

direction was given to all the Congress members to vote in her favour and the

DCC President was directed to issue whip to all the Congress members. Ext.P11

is stated to be the photo copy of the said complaint given by Mantrothuruthu

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Congress Mandalam Committee President and being a photo copy it was marked

only a subject to proof. PW3 has stated that minutes was prepared regarding the

said meeting held at DCC office on 18.05.2014 and all the members who

attended that meeting had put their attendance mark in the same. It was

suggested to PW3 that no such meeting was convened and no decision was taken

to elect Smt.Achiyamma Elsi Samuel as President which PW3 denied. PW3 has

further stated that he orally directed the DCC President to issue whip to the

members.

11. PW4 is Smt.Achiyamma Elsi Samuel and her chief examination is by

way of an affidavit. She has deposed that in connection with the President

election scheduled on 19.05.2014, the Congress parliamentary party meeting was

convened on 18.05.2014 at the DCC office and Sri.M.M.Hassan, Sri.Sooranadu

Rajasekharan, Sri.Pratapa Varma Thampan and other party leaders were present

in that meeting and all the respondents also were present and it was decided to

elect her as President. PW4 has further deposed that the DCC President had

issued whip to all the nine Congress members present there and Ext.P12 is stated

to be the whip given to her by the DCC President. PW4 has further deposed that

in the election meeting the name of the respondent in O.P.No.42/2014 was

proposed by the respondent in O.P.No.41/2014 and seconded by the respondent

in O.P.No.40/2014 and thus the respondent in O.P.No.42/2014 contested against

15

her and all the respondents voted in favour of the respondent in O.P.No.42/2014

by disobeying the decision and direction of the Congress party. PW4 has also

deposed that LDF candidate also contested in that election and that the

respondent in O.P.No.42/2014 got five votes and she got four votes and the LDF

candidate also got four votes and in the subsequent draw of lots, PW4 was

eliminated and in the next phase of election, the candidate belonging to LDF

found victory. In cross-examination it was suggested to PW4 that there is

difference in the ink in respect of the writing contained in Ext.P12 with that of

the signature which she admitted and she stated that DCC President had given the

same to her directly. It was further suggested to PW4 that no whip was given by

the DCC President to the respondents which she denied. PW5 is the

Sasthamcotta Block Congress Committee President and he has deposed that the

parliamentary party meeting was convened at the DCC office on 18.05.2014 as

instructed by the KPCC President in which Sri.M.M.Hassan, Sri.Sooranad

Rajasekharan, Sri.Pratapa Varama Thampan and all the Panchayat members were

present and Smt.Achiyamma Elsi Samuel was decided as the candidate for the

post of President in that meeting and whip was given by the DCC President to all

the members directly. In cross-examination PW5 has stated that minutes was

prepared for the said meeting in which he also had put his signatures. PW5 has

further deposed that in respect of the no confidence motion no whip was given by

16

the DCC President to the members. It was suggested to PW5 that no meeting

was convened on 18.05.2014 and no decision was taken to elect Smt.Achiyamma

Elsi Samuel and that no whip was given by the DCC President which PW5 has

denied.

12. The respondent in O.P.No.42/2014 as RW1 has deposed in terms of

contentions raised by her in the objection. She has deposed that in respect of the

no confidence motion moved against her, whip was given by the DCC President

to all the Congress members to vote against the same and the petitioner and two

others have violated that direction and they voted in favour of the said motion

along with the LDF members for which O.P. Nos.28/2014, 29/2014 and 30/2014

are filed against them. RW1 has further deposed that in the subsequent election

to the post of President no direction or whip was given to the members and all the

members of Congress party were allowed to vote as per their conscience and this

decision was on account of the removal of the President by certain party

members. RW1 has also deposed that after eliminating Smt.Achiyamma Elsi

Samuel in the election to the post of President, the contesting candidates were

RW1 and CPI(M) member and the petitioner and another member voted in favour

of the LDF member and thus RW1 happened to be defeated.

13. On a careful analysis of the entire facts and evidence on record it is

found that no records are produced to prove that the DCC President had issued

17

any direction to these respondents to vote in favour of Smt.Achiyamma Elsi

Samuel in the election held on 19.05.2014. The witnesses on the side of the

petitioner have consistently deposed that minutes was prepared regarding the

meeting held on 18.05.2014 at the DCC office. But no such record is produced .

The non production of the record relating to the meeting said to have been held

on 18.05.2014 is fatal to the petitions. The allegation of the petitioner that all the

nine members of the Congress party including these respondents had participated

in the said meeting is not at all proved by acceptable evidence. If these

respondents were present in that meeting, the petitioner could have proved the

same by producing relevant records. The oral evidence given by PWs1 to 5

cannot be considered as acceptable evidence in this respect. This is more so on

account of the reason that the petitioner has not produced any record to prove that

the DCC President had issued whip to the respondents regarding the election to

the post of President held on 19.05.2014. PW1 has categorically stated that the

respondents had acknowledged the receipt of the whip by putting the signatures

on the copies of the same. If the respondents had given any such

acknowledgments, those records could have been produced before the

Commission. The non production of the said acknowledgments would only

disprove the allegation of the petitioner regarding service of the alleged whip said

to have been issued by the DCC President. Exts.P7, P8 and P12 are of no use to

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prove that the DCC President had issued whip to the respondents. Ext.P7 and

P10 are only photocopies. Ext.P12 is stated to be the whip given to PW4. But

none of these records have any connection with these respondents. It is relevant

to point out that as per Rule 4(2) of the Kerala Local Authorities

(Disqualification of Defected Members) Rules, a direction in writing, which is

commonly referred to as whip, is to be served either directly or by post or by

affixture and if it is served directly the person who gives it shall obtain a receipt

from the member and while sending it by registered post, it shall be done along

with acknowledgment due and while effecting it by affixing, it shall be done in

the presence of at least two witnesses. The petitioner has no case that whip was

sent by registered post or served by affixture. At the same time the petitioner

states that it was given directly and acknowledgments were obtained. But such a

record is conspicuously absent which would mean that the petitioner has failed to

prove issuance of whip to the respondents as provided by law. In this context it

is also significant note that the petitioner has not examined the DCC President

who is the person said to have issued the direction in writing to these respondents

to vote in favour of Smt.Achiyamma Elsi Samuel. No explanation is offered by

the petitioner for the non examination of the DCC President. The DCC President

is the competent person rather the only person to state whether whip has been

issued to the Congress party members because admittedly, he is the person

19

competent to issue whip in his capacity as the person competent recommend

symbol to the candidates. Even PW3 has stated that DCC President is the

competent person to issue direction in writing to the members regarding voting in

the election to the post of President. So the non-examination of the DCC

President coupled with the non-production of the record relating the service of

whip to the respondents is fatal to these petitions.

14. On a careful consideration of all facts and materials on record, I find

that the petitioner has completely failed in proving that the Congress party had

decided Smt.Achiyamma Elsi Samuel as UDF candidate to the post of President

in the election scheduled on 19.05.2014. There is no acceptable evidence to

prove that any decision in this regard was taken in the presence of the

respondents in any meeting. It is further found that no communication was given

to the respondents regarding the decision if any of the Congress party to elect

Smt.Achiyamma Elsi Samuel as President. The allegation of the common

petitioner that whip was issued by the DCC President directing the respondents to

vote in favour of Smt.Achiyamma Elsi Samuel in the election to the post of

President held on 19.05.2014 stands not proved in these cases. The common

petitioner has also failed in proving that the respondents have disobeyed any

decision of the Congress party or the direction of the DCC President in respect of

voting in the election to the post of President held on 19.05.2014. In the above

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circumstances it cannot be held that the respondents have either voluntarily

abandoned their membership from the party or violated any direction in writing

issued by the DCC President in respect of voting in the election to the post of

President. Therefore the petitions deserve only dismissal. The points are

answered accordingly.

In the result, the petitions are dismissed.

The parties shall bear their respective costs.

Pronounced before the Commission on this the 19th day of March 2015

K.SASIDHARAN NAIR,

STATE ELECTION COMMISSIONER

APPENDIX

Witnesses examined on the side of the petitioner

PW1 : Sri.Rajendran, Sivamangalam, Pattamthuruthu P.O.

Mantrothuruthu

PW2 : Smt.Valsala, Dhanya, Villimangalam West,

Mantrothuruthu P.O.

PW3 : Sri.M.M.Hassan, Harsham, E.V.Road, Thycaud P.O.

Thiruvananthapuram

PW4 : Smt.Achiyamma Elsi Samuel, Charuvil Bhavan,

Matrothuruthu

PW5 : Sri. Thundil Noushad, Thundil Puthen Veedu,

Sasthamcotta

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Witness examined on the side of the respondent

RW1 : Smt. S.Sobha, Kannimel, Nenmeni, Mantrothuruthu

P.O. Kollam

Documents produced on the side of the petitioner

P1 : Copy of the declaration in Form No.2 submitted by

Sri.A.Vijayan


Smt.A.Sujatha


Smt.S.Sobha


Sri.K.Radhakrishnan


Sri.Subramanian.P

P6 : Copy of the register showing the political

affiliation of the members of Mantrothuruthu Grama

Panchayat

P7 : Copy of the whip dated 18.05.2014 issued by

Adv.G.Pratapa Varama Thampan, President, DCC

Kollam addressed to Sri.G.Rajendran

P8 : Copy of the letter No.ICDS/Eln.-442/13 dated

05.05.of the Returning Officer G-47

Muntrothuruthu Grama Panchayat addressed to

Shri.G.Rajendran

P9 : Copy of the letter No.ICDS/C1-182/2013 dated

20.05.2014 of the Returning Officer, Mantrothuruthu

Grama Panchayat

22



Kollam addressed to Smt.O.Valsala

P11 : Copy of the application dated 12.05.2014 given by

Shri.M.K.Suresh Babu, President Indian National

Congress (I), Mantrothuruth Mandalam Committee to

Shri.V.M.Sudheeran, KPCC President

(Subject to proof)



Kollam addressed to Smt.Achiyamma Elsi Samuel

Sd/-

K.SASIDHARAN NAIR,

STATE ELECTION COMMISSIONER