IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 7618 of 2008(F) ------------------------- PETITIONER: ------------ K.C.VARGHESE (MEMBER ,WARD NO.8,RAYAMANGALAM GRAMA PANCHAYAT RAYAMANGALAM P.O.) KADAMBELIL HOUSE KEEZHILLAM P.O.,PIN 683 841. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: ------------- 1. SECRETARY, KOOVAPPADY BLOCK PANCHAYAT (OFFICER AUTHORIZED BY THE STATE ELECTION COMMISSION UNDER S. 157 OF THE KERALA PANCHAYAT RAJ ACT,1994) KURUPPAMPADI P.O.,ERNAKULAM DISTRICT . 2. CHINNAMMA VARGHESE (MEMBER,WARD NO.6,RAYAMANGALAM GRAMA PANCHAYAT) THOTTUNKAL HOUSE, VAIKARA P.O., KURUPPAMPADY, ERNAKULAM DISTRICT. 3. RAYAMANGALAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY OFFICE OF RAYAMANGALAM GRAMA PANCHAYAT RAYAMANGALAM P.O.,ERNAKULAM DISTRICT. BY ADV.SRI.MURALI PURUSHOTHAMAN, SC, ELE. COMM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 7618 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008 JUDGMENT As directed by me, copy of the writ petition was served on Sri.Mulari Purushothaman, standing counsel for the Election Commission. I have heard the submissions of Sri.Ashok.M.Cherian, counsel for the petitioner and the standing counsel for the Election Commission. According to the petitioner, the second respondent, member representing ward No.6 of Rayamangalam Grama Panchayat has already defected and thereby entailed a disqualification. Petitioner has submitted Ext.P4 representation before the first respondent, officer authorised by the Election Commission and the prayer in Ext.P4 is that since second respondent has entailed a disqualification by subscribing her signature to the resolution expressing no confidence, she should not be permitted to participate in the voting on the motion of no confidence when it is tabled. Drawing my attention to Section 4 of the Kerala Local Authorities ( Prohibition of Defection)Act, Sri.Ashok.M.Cherain WPC.No.7618/08 2 submitted that that the question whether a question has arisen for the purpose of Section 4(1) is a question to be considered and decided by the authorised officer. Drawing my attention to various decisions, Sri.Murali Purushothaman would submit that the authorised officer does not have any power to conduct any enquiry. It is the election commission which is alone close with the power to adjudicate the question and disqualification will become effective only from the date when the election commission issues the declaration. My attention was drawn by the learned counsel to the observation of the Supreme Court in Rameshwar Prasad and others v. Union of India and another ( 2006(2)SCC1) paragraphs 85, 161 and 164 also. Having considered the rival submissions in the light of the judicial precedents cited before me, I am in agreement with Sri.Murali Purushothaman when he submits that the first respondent does not have the power to decide Ext.P4. Writ Petition will stand dismissed. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.7618/08 2