IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ashok Bhushan & A.M. Shaffique, JJ.
N.K. Pavithran and Others – Appellants
Vs.
M. Nandakumar and Others – Respondents
W.A. No. 2113 of 2015 & W.P. (C) 14893 of 2012
Decided On : 16-10-2015
Kerala Local Authorities (Prohibition of Defection) Act 1999 - Section 4(3) - State Election Commission - Disqualification - Held, disability arises only when a declaration is made by the State Election Commission. When a declaration is made that a member has defected and he has committed a prohibited act of defection, consequence has to follow therefrom. Further disqualification for a period of six years from the date of decision has been consciously provided which is to take effect from the date of the decision of State Election Commission. When the State Election Commission takes a decision that a member is disqualified, the sting of the decision cannot be obviated by a member on the ground that the tenure of the Municipality has come to an end as well as six years of disqualification thereafter.
Ashok Bhushan, J.
1. The short question involved in this writ appeal is as to whether after defection of an elected member of Municipality, the disqualification for a period of six years shall commence from the date of the order passed by the State Election Commission or the said period shall commence from the date of expiry of tenure of the local body. The short facts of the case are:
The petitioners and 1st respondent were Councilors of Kalamassery Municipality for the years 2000-05. They contested election in 2000 as official candidates of Indian National Congress, which is a constituent unit of United Democratic Front (UDF). The 1st respondent filed petitions before the State Election Commission under Sections 3 and 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 alleging that the petitioners violated the whip and ceased to be member of Indian National Congress.
2. The respondents filed their objection in the above petitions. The State Election Commission, by its judgment dated 12.06.2012, decided both the petitions, O.P. Nos. 174 and 175 of 2004, holding that the respondents, (petitioners in the writ petition) by their conduct of having contested and voted against the official candidate of the Congress Party and having violated the decision of the Congress party in the election to the post of Chairperson held on 06.12.2004 to Kalamassery Municipality, have committed defection as provided by the first limb of Section 3(1)(a) of the Act, so they are liable to be disqualified as prayed for. The operative portion of the order dated 12.06.2012 reads as follows:
"In the result these petitions are allowed and the respondents are declared as disqualified for being the Councilors of Kalamassery Municipality and they are further disqualified from contesting as candidates in any election to any local authority for a period of 6 years from this date as provided by Section 4(3) of the Act. The parties shall bear their respective costs."
3. Challenging the above order of State Election Commission, W.P. (C) No. 14893 of 2012 was filed by the disqualified candidates. The learned Single Judge, vide its judgment dated 08.09.2015, has dismissed the writ petition upholding the order of State Election Commission. This Writ Appeal has been filed by both the writ petitioners challenging the order of learned Single Judge as well as the order of State Election Commission.
4. Sri. S. Sreekumar learned Senior counsel appearing for the appellants raised only one submission, i.e. the disqualification of the appellants shall not continue beyond six years of the expiry of tenure of Municipality. He submits that the tenure of Municipality having come to an end in 2005, the disqualification ordered by the State Election Commission for a period of six years shall come to an end in 2011 and as on date the appellants are not disqualified to be the member of the local authority. It is submitted that Section 4(3) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 provides for consequences of a decision taken by the State Election Commission to disqualify a member as per sub-section (2). It is submitted that the consequence is that he shall be ceased to be a member from the date of such decision and shall be disqualified for contesting as a candidate to any local authority for six years from that date. It is submitted that since the emphasis in Section 4(3) is that the member shall be ceased to be a member from the date of such decision, in the present case on the date of judgment by the State Election Commission, the tenure of Municipality having already come to an end, including the six years of disqualification, the disqualification cannot operate as on date. It is submitted that the object of Section 4(3) of the Act is to disqualify a member from the membership in question as well as for next six years. He submits that the period of next six years cannot go beyond six years after the completion of tenure of the
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