PATHUMMA Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) The Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as the Act) authorises, under S.4 of the Act, the State Election Commission to decide any question as to whether a member of a local authority has become subject to disqualification provided under the Act, on a petition filed before him. The petitioners in the above two Writ Petitions were elected members of the Kunnamangalam Panchayat, in the Malappuram District. The two women members were signatories to a No Confidence Motion, and on it being tabled on 4.1.2003, the President and Vice President of the Panchayat had to bow out. Two Original Petitions as O.P.No.9 and 10 of 2003 thereupon came to be filed before the State Election Commission. The petitioner there was the unseated President Mr. Chakkeeri Abdul Haque (2nd respondent herein). The prayers in the petitioners were for holding that the said members had committed defection as envisaged by S.3 of the Act and consequently were to be declared as disqualified for holding the position of members of the Panchayat, and unseating them.

(2.) On notice being issued, the respective members had entered appearance and contested the petitions. Oral and documentary evidence had been adduced by the parties. By a common order, dated 4.11.2003, the first respondent - State Election Commission had allowed the petitions, and declared that the said two members had ceased to be members of the Panchayat and also became disqualified for contesting as candidates to any local bodies, for a period of six years. According to the Election Commission, the said members had voluntarily given up their membership from the political party, viz., Indian Union Muslim League (IUML) and had committed defection as contemplated under S.3(a) of the Act. This order is under challenge. The petitioner in WPC No.37300 of 2003 (V.T. Pathumma) was the first respondent in O.P.No. 10 of 2003 before the Commission. Pulikodan Sulaikha (Petitioner in WPC 37347/2003) was the first respondent in O.P.No.9 of 2003 as above. The above said common order is under challenge. The parties agreed that the two Writ Petitions could be jointly heard and disposed of in view of the more or less identical contentions taken by them all through out. By virtue of the interim orders, the petitioners are even now continuing as members of the Panchayat.

(3.) The first respondent - Election Commission had been addressed on two grounds. The first was that the President Mr. Haque, as the leader of the Indian Union Muslim League, a political party, had been validly nominated as the whip and the conduct of the two members, over reaching the whip issued and crossing over side was an actionable claim, entitling him to move for disqualifying them. The second contention was the two members had voluntarily given up membership from the political party (IUML) and were 'guilty' of defection.