IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 28928 of 2009(I) ------------------------------------- PETITIONER(S): --------------------- N. VISWAMBHARAN, MEMBER, WARD NO.13, KARAMKULAM GRAMA PANCHAYAT, KARAMKULAM, RESIDING AT PANAMKALA PUTHEN VEEDU, KARAMKULAM, PULLUVILA P.O., THIRUVANANTHAPURAM. BY ADV. DR.K.P.SATHEESAN MR.K.K.GOPINATHAN NAIR MR.M.R.JAYAPRASAD MR.P.MOHANDAS (ERNAKULAM) MR.MATHEW SUNNY RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. KARUMKULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KARUMKULAM, THIRUVANANTHAPURAM. 3. G.ANILKUMAR, MEMBER, WARD NO.6, KARAMKULAM GRAMA PANCHAYAT, KARAMKULAM, (DHANYA, PAMBUKALA, KARAMKULAM, PUTHIYATHURA P.O., THIRUVANANTHAPURAM). R1 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM N. R2 BY ADV. MR.SANTHEEP ANKARATH, MR.V.C.MADHAVANKUTTY. R3 BY ADV. MR.K.P.SUDHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28928/2009-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 24/09/2009 IN O.P. NO. 139/2008 OF THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------- W.P.(C) No. 28928 OF 2009 -------------------------------------- Dated this the 19th day of November, 2009 J U D G M E N T ~~~~~~~~~~~~~ The petitioner, a member of the 2nd respondent Panchayat, faces an order of declaration by the State Election Commission that he is disqualified in terms of the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, (herein after referred to as 'the PD Act') on ground of defection. Though he filed objections before the Commission, he did not thereafter appeared and prosecute the matter. The Commission held that the proceedings are maintainable, but, that the writ petitioner is not liable to be disqualified on account of having violated any direction (whip) issued by the party. This was on the plea that the Commission was not satisfied with the evidence tendered in support of the applicant's plea before the Commission that he was the duly authorised person, who was empowered to issue a direction (whip). 2. However, the Commission held that the writ petitioner is disqualified for having voluntarily given up the membership of the W.P.(C) No.28928/2009 2 political party to which he belonged. To arrive at this finding, the Commission relied on the undisputed fact that the writ petitioner was elected to the Panchayat as the official candidate of the CPI(M). That was also corroborated by the extract from the official register, which was available before the Commission as Ext.P1. The Commission took note of the material document and held that out of the 17 members of the Panchayat, 10 belonged to the coalition-LDF and 7 belonged to the coalition-UDF and that, later, Ward No. IV was bagged by UDF and the strength of the LDF came down to 9 and that of UDF went up to 8. In such circumstances, a no confidence motion was moved against the Panchayat's President and Vice President, who belonged to the LDF. Exts.P5 and P6 minutes of the meeting, in which the no confidence motion was discussed showed that the no confidence motion was carried with the support of the petitioner, who belonged to the LDF, since among the 9 members, who were present and who voted to carry the no confidence motion, the 8 others belonged to the UDF. With these materials, the Commission had concluded that the writ petitioner had voluntarily given up his membership of CPI(M), the political party to W.P.(C) No.28928/2009 3 which he belonged. The said findings are well in consonance with the law laid down by this Court in Varghese v. Kerla State Election Commission [2009(3) KLT 1] and in the precedents referred to therein. I do not find any legal infirmity in that regard. 3. The learned counsel appearing for the petitioner, however, argues that the decision in Varghese's case (supra) merits reconsideration in as much as the decision of this Court in Jose Augustine v. State of Kerala [AIR 1999 Kerala 293] was not considered. In that decision, the provisions in Article 243C(5) of the Constitution of India and the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Local Authorities (Prohibition of Defection) Ordinance, 1998, were considered by this Court to lay down that the office bearers of a Panchayat do not have the entitlement to say that they shall continue in office for the full tenure, notwithstanding, any no confidence motion or any finding as to defection. It was specifically held that such approach would hit at the democratic fabric of the Constitution and that the incidents of incurring the disqualification by defection flows only from the declaration made in W.P.(C) No.28928/2009 4 that regard by the Election Commission. That decision in no manner guides the law that applies to the case in hand or to the principles that fell for consideration of the Division Bench decision of this Court in Varghese's case (supra). For the forgoing reasons, the Writ Petition fails and the same is dismissed. THOTTATHIL B. RADHAKRISHNAN, Judge ps