NAZEER Vs. MANIKANTAN NAIR

JUDGEMENT

(1.) This appeal is filed by the 1st respondent in W.P.(C) No. 21334/2014 challenging judgment dated 23.7.2015 by which the learned Single Judge had set aside the order passed by the State Election Commission (hereinafter referred to as the Commission), thereby allowing the Writ Petition. The short facts involved in the Writ Petition would disclose that the appellant filed O.P. No. 3/2013 before the Commission against the writ petitioner/1st respondent herein (who is hereinafter referred to as the 'petitioner') under S. 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as 'the Act') inter alia alleging that on account of the petitioner violating the whip issued by the political party and acting against the interest of the political party, he has voluntarily given up his membership in the political party which amounts to defection in terms of S. 3(1)(a) of the Act. The appellant alleged that out of 21 seats in Manikkal Panchayat, 9 seats were won by Indian National Congress (I) (for short INC), 10 by Left Democratic Front (LDF) and 2 by independent candidates. INC decided to rule the Panchayat with the help of two independents. The petitioner being a member of INC was elected as the President and Smt. Sudharmani, an independent member was elected as Vice President. The President was removed by a No Confidence Motion brought in at the instance of LDF supported by an independent member Sri. K. Jayan. The LDF members moved a No Confidence Motion against the Vice President. No Confidence Motion was tabled on 4.1.2013. The Parliamentary Party Committee meeting of INC members held on 3.1.2013 decided not to attend the No Confidence Motion which was tabled on 4.1.2013. It is alleged that the petitioner who attended the meeting openly declared that he will vote in the No Confidence Motion against the Vice President even if he loses his membership from the Panchayat or from the party. On 3.1.2013, the District President of INC issued a direction in writing to all the 9 members not to attend the meeting of no confidence to be tabled against Smt. Sudharmani. Another emergency meeting was convened on 3.1.2013 to serve the direction in writing to all the membeRs. Though the petitioner attended the meeting and received the direction in writing, he did not sign the acknowledgment. Hence it was decided to affix a copy of the direction in writing at his residence and accordingly affixture was made in the presence of two witnesses at his residence on 3.1.2013. The appellant who was the parliamentary party leader also issued letter in writing to the Secretary of the Panchayat and to the Returning Officer regarding the direction issued to all the members of INC. It is stated that contrary to the aforesaid direction, petitioner attended the meeting on 4.1.2013 and voted in favour of the No Confidence Motion thereby violating the direction in writing of the District President. This action of petitioner, according to the appellant, amounts to acting contrary to the direction in writing of the political party. It is further alleged that he had voted against the Vice President with the support of LDF members to elect his relative as the next Vice President. It is alleged that by joining LDF Camp, he had voluntarily committed defection.

(2.) Written statement has been filed by the petitioner denying the aforesaid factual situation. It is contended that the Parliamentary Party meeting was not held on 3.1.2013 and no such notice was given to the petitioner. There was no decision to abstain from attending the meeting on 4.1.2013. Petitioner also denied the fact that the direction in writing was affixed in front of his house. He contended that as per the information received by him, no such direction was issued by the District Congress President and he had not received any such information at all. He further contends that he had participated in the No Confidence Motion to protect the interest of the political party and voted in favour of the motion against an independent candidate who acted against the interest of the official congress candidate. He also denied the allegation that he had voluntarily abandoned membership of the INC and joined LDF.

(3.) Before the Commission, the parties adduced evidence. PWs 1 to 3 were examined on the side of the appellant and RWs 1 to 3 on the side of the petitioner. Exts. P1 to P3 and X1 to X2 were the documents relied upon.