IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 5254 of 2009(B) ------------------------------- PETITIONER: -------------- S.K. JAYACHANDRAN, SHEEJA NIVAS, MAMPAZHAKKARA, PERUMPAZHATHUR P.O., NEYYATTINKARA. BY MR.T.RAVIKUMAR, ADVOCATE. MS.G.AMBILI, ADVOCATE. RESPONDENTS: ------------------ 1. KERALA STATE ELECTION COMMISSION, TRIVANDRUM. 2. LOCAL ADMINISTRATION REGIONAL JOINT DIRECTOR, QUILON. 3. RETURNING OFFICER, M-01-NEYYATTINKARA MUNICIPALITY & ASSISTANT DIRECTOR OF SURVEY (RE-SURVEY), NEYYATTINKARA. 4. MRS. VIJAYAKUMARI, COUNCILOR, WARD No.6, KUTTAPPANA, NEYYATTINKARA MUNICIPALITY, TRIVANDRUM. BY MS. K.R. DEEPA, GOVERNMENT PLEADER. MR.MURALI PURUSHOTHAMAN, SC FOR KSEC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.5254 OF 2009 ---------------------------------------- Dated this the 17th day of February, 2009 JUDGMENT The petitioner is a Councillor of the Neyyattinkara Municipality. The Chairperson of the Municipality was one Smt. Priyamvada and the 4th respondent belongs to the same political alliance to which the said Smt. Priyamvada belongs. The petitioner is the leader of the parliamentary party to which all of them belong. The 4th respondent moved a no-confidence motion with the support of the Councillors of the same party to which Smt. Priyamvada belongs and six Councillors of that party voted in favour of the no-confidence motion as a result of which no-confidence motion against Priyamvada was passed. Thereafter, the petitioner on the allegation that the 4th respondent disobeyed a whip issued by the petitioner to vote against the motion, moved a petition before the 1st respondent under the Kerala Local Authorities ( Prohibition of Defection) Act. W.P.(c)No.5254/09 2 That is pending. The petitioner's grievance in this writ petition is that while that petition is pending, an election to the post of Chairperson is being conducted by issuing Ext.P4 notice. The petitioner, therefore, seeks the following reliefs: “i. to direct respondents 1 to 3 to stop all further proceedings pursuant to Ext.P4 pending disposal of the petitions before the 1st respondent. ii. to direct that 4th respondent being a disqualified member cannot contest to the post of Chairperson Neyyattinkara Municipality till she is found to be eligible as a member of the Council by the 1st Respondent”. The petitioner contends that in view of the Supreme Court decision in Rajendra Singh Rana V. Swami Prasad Mourya [AIR 2007 SC 1305] the 4th respondent cannot contest the election, in so far as she is disqualified. But I find that in Section 4(3) of the Kerala Local Authorities (Prohibition of Defection) Act it is stated that a member shall cease to be a member of the Local Authority, when the State Election Commission decides that, that member has become subject to disqualification under Sub Section 2 of Section 4 of the Act. In view of the clear statutory provision, the petitioner cannot now contend that the 4th respondent cannot contest the election. W.P.(c)No.5254/09 3 My above view is supported by the decision in Thangal V. Block Development Officer [2007 (3) KLT 561] . In the above circumstances, I do not find any merit in this writ petition and accordingly, the same is dismissed. However, I make it clear that the election of the 4th respondent would be subject to the result of the petition pending before the 1st respondent for disqualifying the 4th respondent. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.5254/09 4