The judgment established the importance of official documents and proper consideration of pleadings in determining defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

A.M. Shaffique, J.

Petitioner challenges Ext. P8 order passed by the Kerala State Election Commission dismissing an application filed by the petitioner seeking disqualification of the second respondent who was one of the elected candidates in the Elikkulam Grama Panchayath in the general elections to the local bodies held in the year 2005. Both the petitioner as well as the second respondent were elected as the members of the Panchayath. According to the petitioner they were put up by the United Democratic Front which comprised of Indian National Congress and Kerala Congress (Mani). The second respondent was the official nominee of the UDF for the post of President. She was defeated by one vote. When the President resigned from the post in 2007, fresh elections were conducted on 30/11/2007. It is the contention of the petitioner that at the relevant time the second respondent deserted the UDF and contested as the candidate of rival LDF. This, according to the petitioner, amounted to disqualification under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred as the Act). Complaint of the petitioner is that despite the fact that sufficient evidence was adduced to prove disqualification of the second respondent, the Election Commission, on an appreciation of the facts and evidence involved in the case, came to the conclusion that the petitioner has failed to establish that the second respondent has incurred disqualification under the provisions of the Act and dismissed the original petition.

2. The main contention urged by the petitioner is that the Election Commission did not consider the pleadings of the 2nd respondent in the written submission wherein she had not specifically denied that she was a candidate of congress at the time of election and formed part of UDF coalition. Further the Election Commission did not consider the evidence adduced in the case by way of Ext. X1 and X5 which inter alia proved the averments in the petition and the same were rejected on the ground that the Secretary who maintained the said register was not examined. Further it is also found that petitioner has not taken any steps to call for the ballot papers that were used in the subject voting.

3. No counter-affidavit is filed in the matter. Learned counsel for the petitioner relies upon judgment of this Court in Mohandas K.P. v. State Election Commissioner, Tvm and Others 2009 (4) KHC 935 : 2009 (4) KLT 957 : ILR 2009 (4) Ker. 924 in order to contend as to what amounts to withdrawing from coalition as provided u/s 3(1)(b) of the Act wherein the learned Single Judge of this Court held as under:

10. But, voluntarily giving up membership of a political party need not be necessarily by resignation, for incurring the liabilities under the PD Act. This is the law laid in the precedents noted above. Insofar as coalitions are concerned, there is no question of resignation as such. The membership in a coalition is itself a deemed status. The provision in Section 3(1)(b) that if an independent member of any coalition withdraws from such coalition, he shall be disqualified from being member of that local authority means only that the member 'withdraws' from the coalition, in which he had a deemed membership by virtue of the definition contained in Section 2(ii). Here, the learned senior counsel appearing for the 3rd respondent Panchayat supporting the writ petitioner relied on the judgment of the Apex Court in Mohd. Yunus Saleem Vs. Shiv Kumar Shastri and Others, to point out that the word 'withdraw' means to retire from contest. That decision rendered construing the provisions of the Representation of the People Act, 1951, took the view that "withdraw" in that context means "withdraw or retire from contest". The word 'withdraw' is not defined in the PD Act. Going by the Chambers's Twentieth Century Dictionary, 'withdraw' (verb transitive) is, "to draw back or away : to take back or away : to remove