K.M. JOSEPH Vs. BABYCHAN MULANGASSERI

JUDGEMENT

(1.) THIS writ appeal arises out of the judgment dated 18/7/2013 of the learned Single Judge of this Court in W.P. (C) No. 26153/2012. The appellant before us is the 2nd respondent in that Writ Petition filed by respondents 1 to 3 herein seeking an order to set aside Exhibit P10 order dated 31/10/2012 of the Kerala State Election Commission, the 4th respondent herein, in O.P. Nos. 26/2001 and connected cases.

(2.) BRIEF facts of the case which are necessary to dispose of this writ appeal are summarised as follows: -The appellant and respondents 1 to 3 are the elected members of Manimala Grama Panchayat in Kottayam District, who are all members of the politica party Indian National Congress (INC), which is part of the coalitio United Democratic front (UDF). In the General Elections -2010 to the Local Self Government Institutions in Kerala held in October, 2010, UDF won 10 seats in Manimala Grama Panchayat, out of which 5 seats were won by INC candidates, 4 seats by Kerala Congress (M) and 1 seat by Indian Union Muslim League (IUML). In the remaining 5 seats Left Democratic Front (LDF) won 3 seats, Bahujan Samaj Party (BSP) won 1 seat and an independent candidate secured 1 seat. In that election, the appellant was elected from Ward No. 9 of Manimala Grama Panchayat and respondents 1 to 3 were elected from Ward Nos. 6, 1 and 3, respectively, of that Grama Panchayat. The appellant as well as respondents 1 to 3 contested the election with the election symbol allotted to INC. In the meeting of the Congress Parliamentary Party convened on 6/11/2010 the appellant was elected as the Chief Whip. On 8/11/2010, with the support of all the elected members of INC as well as other elected members forming part of the coalition UDF, the appellant was elected to the post of the President of Manimala Grama Panchayat. Subsequently, respondents 1 to 3 with the support of other elected members of the coalition moved a no -confidence motion against the appellant. The no -confidence motion was tabled for discussion on 28/7/2011. Respondents 1 to 3 voted in favour of the no -confidence motion and ousted the appellant from the post of the President.

(3.) O .P. Nos. 26/2011, 27/2011 and 28/2011 filed by the appellant before the Kerala State Election Commission, seeking a declaration that respondents 1 to 3 herein have become subject to disqualification on the ground of defection, are marked as Exhibits P3 to P5 in W.P. (C) No. 26153/2012. The said Original Petitions are based on same set of facts, alleging that respondents 1 to 3 herein with the support of Kerala Congress decided to move a no -confidence motion against the appellant to oust him from the post of the President of Manimala Grama Panchayat. It was done without the permission of the Parliamentary Party or the Political Party, INC. The DCC was against the proposal to move no -confidence motion. The appellant in his capacity as the duly elected Whip of the Congress Parliamentary Party and as authorised by the Political Party issued a whip on 21/7/2011 to all Congress members to vote against the motion and to defeat the same which will be tabled for discussion on 28/7/2011. The notice to respondents 1 to 3 herein were issued by affixture and by registered post. The DCC President Mr. Kurian Joy also issued direction to vote against the motion and to see that the position of the appellant as President is protected and further intimated that, the motion was moved without the knowledge of the DCC. On 28/7/2011, respondents 1 to 3 herein in gross defiance of the direction issued by the Parliamentary Party purposefully moved and voted in favour of the motion and out seated the President of their own Party. Respondents 1 to 3 herein were aware of the contents of the whip, the intention of the Political Party and the stand which the political party took in the voting, but they intentionally defied the same consequent on which the no -confidence motion was carried on and Congress lost power in the Panchayat. Respondents 1 to 3 herein have voluntarily abandoned or given up their membership in Congress Party and committed defection. Now, they are trying to be in power. Acting in violation of the instructions of the Political Party alone is sufficient to hold that respondents 1 to 3 herein have voluntarily given up their membership of the party. Therefore, respondents 1 to 3 herein are disqualified to continue as members of Manimala Grama Panchayat representing INC and they are liable to be disqualified to contest the election for a period of 6 years.