The main legal point established in the judgment is that disqualification under the Defection Act requires concrete evidence to prove the member's awareness of the party directives.

JUDGMENT :

A. Muhamed Mustaque, J.

1. The petitioner approached this Court by way of this writ petition challenging the decision of the Kerala State Election Commission declaring the petitioner as disqualified to continue as a member of Pallikkathodu Grama Panchayat based on an election held in November 2015. The decision also interdicts the petitioner for contesting as a candidate in an election to any local authorities for a period of six years from 18.6.2019, the date of the order. This decision was taken on a petition filed by the first respondent under the Kerala Local Authorities (Prohibition of Defection Act,) 1999 (hereinafter referred to as the Defection Act").

2. The petitioner and the first respondent are elected members of the Panchayat. They were elected as the candidates of the Kerala Congress (M) [for short, 'KC (M)']. KC (M) was part of the coalition of United Democratic Front (for short, 'UDF'). The election petition arose in the context of election to the Development Standing Committee of the Panchayat. The election to the above office was held on 29.6.2018. The case of the first respondent before the Election Commission was that violating the whip issued by the District President of KC (M), the petitioner cast her vote in favour of a rival candidate belonged to the Bharatiya Janata Party (for short, 'BJP') in the election. The first respondent was the candidate nominated by UDF for the post of Development Standing Committee.

3. There is no dispute to the fact that the petitioner had not voted in favour of the first respondent, who is a member of KC (M). According to the petitioner, no whip was served on her and she was not aware of the whip.

4. As seen from the impugned order, the vote cast by the petitioner was in favour of one Smt. Sobhana Kunjumon, a candidate set up by BJP. That vote was declared invalid as the petitioner omitted to write her name on the reverse side of the ballot paper.

5. The service of whip allegedly was by way of affixture in the presence of two witnesses. There was no service of whip on the Secretary of the local authority. Therefore, this is not a case coming under the second limb of Section 3(1)(a) of the Defection Act, disqualifying the petitioner on account of disobeying the whip. This Court in George Elamplakkadu @Vakkachan Powathil v. A.V. Mathew @ Samkutty Vettupalam and Others, 2020 (5) KHC 297] had held that service of whip to the Secretary is mandatory and non compliance of the said provision is fatal. Therefore, the only question to be considered is, whether the case attracts first limb of Section 3(1)(a) on the ground of disqualification relatable to voluntarily giving up of membership of the political party.

6. The only evidence adduced before the Commission in regard to service through affixture was the oral evidence. To attract the first limb there must be a concrete evidence to prove that a member of a party was aware of the party directives.

7. The existence of whip was disputed and the service of the whip by affixture was also disputed. No decision was placed before the Election Commission to establish that a decision was taken in the meeting of the political party to nominate the first respondent for the office of the Development Standing Committee. At the time of alleged affixture of the whip, no one was there at the home of the petitioner. Except the oral evidence given by the President of KC (M) and two witnesses of KC (M) and prove witnesses of affixture absolutely there was no evidence to show that the petitioner was aware of the whip issue.

8. This case would have been different if the copy of the whip was served on the Secretary or the copy of the whip was served on the board of the local authority so as to attribute constructive knowledge to the petitioner. When there is no valid whip as per the law, any disqualification with reference to the first limb for voluntarily giving up of membership must be with clear evidence to prove that a member had defied party direc