Ext. P6 order passed by the Kerala State Election Commission, is sought to be quashed in this writ petition. Petitioner is also seeking a declaration that he has not voluntarily given up his membership of the Congress party so as to disqualify him.

2. The facts that led to Ext. P6 order are that the petitioner herein was a candidate sponsored by the Congress party and was elected as a member of the Thrikadavoor Grama Panchayat. There were 21 members in the Panchayat, out of which, nine belonged to Congress (I), eleven belonged to LDF and one was an independent. Ext. X1, the political affiliation register of the Panchayat discloses these details.

3. Election of the Vice President was held on 17.2006 and there were two candidates. One was Mr. Kochukuttan Pillai, a Congress (I) candidate and the other was the petitioner himself, also a

member belonging to that party. In the election Mr. Kochukuttan Pillai secured 9 votes as against 12 votes secured by the petitioner. Of the 9 votes cast in favour of Mr. Kochukuttan Pillai 8 were cast by the members belonging to Congress, including himself and of the 12 votes secured by the petitioner, 10 votes were from members belonging to LDF, one from an independent candidate and the remaining one was of himself.

4. Thereupon the 2nd respondent herein filed Ext. P1 petition before the 1st respondent invoking its powers under the Kerala Local Authorities (Prohibition of Defection) Act, 1999. In Ext. P1, it is alleged that in the election to the post of Vice President, disobeying the whip issued by the District President of the Congress (I) party, the petitioner contested the election against Mr. Kochukuttan Pillai, member from Ward No. 4 who was sponsored by the majority of the members belonging to Congress (I). It was alleged that his candidature was seconded by Smt. Sreedevi Mohan belonging to CPI (M) and he contested the election and defeated the official candidate of the Congress (I) securing votes from the members of the LDF. On this basis, it was alleged that in the election of Vice President, the petitioner contested against the official candidate of the Congress party in violation of the whip and rendered himself liable to be disqualified under the Kerala Local Authorities (Prohibition of Defection Act), 1999 (hereinafter referred to as Act" for short).

5. Ext. P1 petition was registered as O.P. No.43/06 and notice was issued to the petitioner. He filed Ext. P2 objection and disputed the validity of the whip issued. He contended that he contested the election as the official candidate of Congress (I) as per the majority decision of the Congress (I) members and that he was elected as Vice President of the Grama Panchayat on that basis.

6. The 2nd respondent tendered oral evidence which is produced as Ext. P3 and petitioners deposition is Ext. P4. The 2nd respondent produced Exts. P1 to P5 documents and the petitioner produced Ext. R1 letter from the Local Self Government Department. Exts.X1 to X6 were also produced. On the pleadings the 1st respondent framed issues as to whether the petitioner has violated the whip issued by a competent person to vote for the official candidate and whether he can be disqualified on the ground of having voluntarily given up membership of the party to which he belonged.

7. In so far as the allegation that the petitioner had disobeyed the whip issued by his party leadership is concerned, the 1st respondent concluded that he cannot be faulted for having violated a duly issued whip as the whip was issued by an incompetent person. In so far as issue No. 2 as to whether the petitioner had rendered himself liable to be disqualified on the ground of having voluntarily given up membership of his party, the 1st respondent concluded as follows:

"The next question to be decided here is whether the respondent has voluntarily given up the membership of the party. All the documents and oral evidence prove beyond any shadow of doubt that the respondent contest