SULFATH NOUFAL KHAN Vs. KERLA STATE ELECTION COMMISSION

JUDGEMENT

(1.) The petitioner and the 2nd respondent are elected as the members of Erattupetta Municipality based on an election held in the year 2015. The petitioner and the 2nd respondent contested the election as a candidate of Communist Party of India (Marxist) (CPI(M)). This writ petition was filed challenging an order of the Election Commission disqualifying the petitioner to continue as a member of aforesaid Municipality.

(2.) The disqualification arose in the context of electing a Chairman and Vice Chairman of the Municipality. The election was scheduled on 4.06.2018. This was necessitated on account of the resignation of the persons who were holding the office previously. It appears that some of the Members of the Municipality had not voted in favour of the nominees of CPI(M). This resulted in filing petition for disqualification by the 2nd respondent against all of them. All the cases were taken up together and the Election Commission decided the cases by a common order. All other cases were dismissed except the petitioner's case. It is in this background that the Court has to consider the decision of the Election Commission.

(3.) As seen from the findings, the petitioner did not cast vote in favour of the nominee of the CPI(M). The petitioner's stand is that she never received any whip. The findings of the Election Commission reflected in paragraph 17. It is seen from the finding that the whip was served through an area committee member namely, Sri. Sheneer. The petitioner denied the acknowledgment. However, the Commission compared the signature in vakalath and the statement of objection produced along with the documents before the Commission and found that the whip was served. Here, it is to be noted that there was no service on the Secretary of the local authorities, which is a mandatory requirement under law. When there is a denial and when there is no proof as to the service on the Secretary, it has to be assumed that there was no valid service of whip. Therefore, the only question is whether the petitioner had a knowledge of such directions of the party. The service of the whip is not proved in accordance with law. The Election Commission proceeded as though there was a valid service of whip. In the absence of any concrete and cogent evidence to prove that the petitioner was aware of any direction of the party, the first limb of 3(1) (a) of the Act to disqualify a member on the ground of voluntarily giving up of membership, cannot be canvased. In the light of the facts and circumstances, I am of the view that the petitioner made out his case for interference. Since there is no valid whip in accordance with the provisions of law, further evidence need not be looked into, based on whip, to disqualify the petitioner under Sec. 3(1)(a) of the Act, unless there is an ample evidence to show that the petitioner was aware of such decision of the party. Accordingly, this writ petition is allowed and the impugned order is set aside as against the petitioner.