IMPORTANT POINTS
Member of a local authority belonging to any political party acted contrary to the direction in writing (whip) issued by the political party, the petitioner has to place on record a copy of the direction in writing (whip) issued by the political party; and in the enquiry conducted under sub-section (2) of Section 4, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also to the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4.

JUDGMENT :

The petitioner, who is a member of the 2nd respondent Vechoochira Grama Panchayat, elected from Ward No.7, in the election held in November, 2015, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 order dated 09.04.2019 of the 3rd respondent Kerala State Election Commission in O.P.No.47 of 2017, a petition filed by the 1st respondent herein under sub-section (1) of Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for declaring that the petitioner herein, who was arrayed as the respondent in that original petition, committed defection and hence disqualified to continue as member of Vechoochira Grama Panchayat; and for declaring him as disqualified to contest as candidate in any election to the local authorities for a period of six years.

2. On 26.04.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to respondents 1 and 2 by speed post. The learned Standing Counsel for State Election Commission entered appearance for the 3rd respondent.

3. On 26.04.2019, this Court granted an interim order, whereby the petitioner is permitted to function as member of the Vechoochira Grama Panchayat, however, subject to the condition that he shall not have any right to vote in the meeting of the Panchayat and to draw any financial benefit in his capacity as a member of the Panchayat and shall not hold any office in the Panchayat in his capacity as a member. The said interim order, which was operative for a period of three months, which was extended from time to time, was extended until further orders on 31.10.2019.

4. A counter affidavit has been filed by the 1st respondent, opposing the reliefs sought for in this writ petition.

5. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent, the learned counsel for the 2nd respondent and also the learned Standing Counsel for the 3rd respondent State Election Commission.

6. The petitioner, who is an elected member of the 2nd respondent Grama Panchayat, from Ward No.7, is before this Court feeling aggrieved by Ext.P3 order of the 3rd respondent State Election Commission in O.P.No.47 of 2017. He is a member of National Congress Party (NCP), who contested election on the symbol 'Clock'. NCP was a constituent of Left Democratic Front (LDF), which was ruling the Grama Panchayat, with the support of an independent member. While so, Kerala Congress (Mani) brought a 'no-confidence motion' against the Vice President of the Grama Panchayat, on 02.09.2019. In that no-confidence motion, the members of Communist Party of India (CPI) and also the petitioner, who belongs to NCP, abstained from voting. The 1st respondent herein, an elected member from Ward No.9 of the Grama Panchayat, who contested the election as an independent candidate, filed O.P.No.47 of 2017 (Ext.P1) before the Election Commission alleging that the petitioner herein violated the whip issued by NCP and thus voluntarily given up membership of that political party.

7. On receipt of notice in Ext.P1, the petitioner herein submitted an objection dated 23.01.2018 (Ext.P2). Before the State Election Commission, Exts.A1 to A7 were marked and PWs.1 to 6 were examined on the side of 1st respondent herein. On the side of the petitioner herein, RWs.1 to 3 were examined. Exts.X1, X1(a) and X2 were marked through witnesses.

8. After considering the pleadings and evidence on record, the State Election Commission arrived at a conclusion that the 1st respondent, being a member of the 2nd respondent Grama Panchayat, is entitled to file original petition under clause (a) of sub-section (1) of Section 3 of the of the Kerala Local Authorities (Prohibition of Defection) Act. From the evidence of PWs.2 to 4 and the admission of RW1, the State Election Commission found that the contention of the petitioner herein that no whip was issued by PW4 District President of NCP cannot