This writ petition is filed by the petitioner

seeking to quash Ext.P3 order of the 1^st respondent,

Kerala State Election Commission, dismissing the petition

filed by the petitioner herein, refusing to disqualify

the 2^nd respondent, allegedly for the defection committed

under Sec.3(1)(a) of the Kerala Local Authorities

(Prohibition of Defection) Act, 1999 (for brevity, 'Act,

1999'). Brief material facts for the disposal of the

writ petition are as follows:

2.

Petitioner and the 2^nd respondent are elected

councillors of Sulthan Bathery Municipality in the

election held during November, 2015. Petitioner was

elected as the candidate of Indian National Congress.

The 2^nd respondent was elected from Ward No.23 as a

candidate of Kerala Congress (M), a constituent of

Congress led United Democratic Front (UDF). There were

three candidates in Ward No.23, including the 2^nd

respondent. The candidates of both LDF and UDF secured

243 votes each, and in the draw conducted, 2^nd respondent

was declared elected. In the election, both UDF and LDF

secured 17 seats each out of the total 35 seats. The

remaining one seat was won by the BJP. After the

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election, a meeting of all elected Councillors of the UDF

was conducted on 17.11.2015, and in the meeting, all UDF

Councillors, except the 2^nd respondent attended, and the

petitioner was unanimously elected as their whip. Sri.

P.P. Ayoob and Smt. Radha Raveendran were decided to be

the candidates to the post of Chairman and Vice

Chairperson. A written direction was given to all the

UDF Councillors, directing them to vote in favour of the

above two candidates in the election proposed to be held

on 18.11.2015. However, the 2^nd respondent refused to

accept the whip, and hence it was affixed on the front

door of the 2^nd respondent's house.

3.

In the meeting held on 18.11.2015, 2^nd

respondent cast his vote in favour of the candidate of

LDF, one C.K. Sahadevan, and accordingly, he got 18 votes

and he was declared elected as the Chairman.

Correspondingly, the UDF candidate got only 16 votes. In

the election to the post of Vice Chairperson also, 2^nd

respondent adopted the same stand. Therefore, according

to the petitioner, it was defying and disobeying the

direction of the UDF, 2^nd respondent supported the

candidate of the LDF, and thereby, the 2^nd respondent

committed defection, and by his own conduct, 2^nd

respondent voluntarily gave up his membership in his

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party Kerala Congress (M), and withdrew from the UDF, and

thus 2^nd respondent incurred disqualification as provided

under Sec.3(1)(a) of Act, 1999.

4.

The 2^nd

respondent has filed a counter

affidavit, refuting the allegations and claims and

demands raised by the petitioner, and in accordance with

the contentions raised before the 1^st

respondent.

According to the 2^nd respondent, he contested the election

to Sulthan Bathery Municipality not as part of any

coalition, in Ward No.23. The UDF supported the

independent candidate Sri. Prem Sai and not the 2^nd

respondent. The declaration given by the 2^nd respondent

and the register showing the party affiliation of the

elected members would show that the 2^nd respondent

contested and was elected as the candidate of Kerala

Congress (M) and not of UDF. The District President of

the Kerala Congress (M) issued direction to the 2^nd

respondent to vote in favour of C.K. Sahadevan, an LDF

candidate to the post of Chairman and Jisha Shaji, LDF

candidate for the post of Vice Chairperson. Therefore,

the 2^nd respondent never violated the direction of his

party and he did not do any act of defection. Therefore,

according to the 2^nd respondent, the allegations made by

the petitioner against the 2^nd respondent in the election

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petition and in the writ petition filed before this Court

that, a whip was given by the UDF to the 2^nd respondent

cannot be sustained under law and facts.

5.

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