S NAZEERKHAN Vs. KERALA STATE ELECTION COMMISSION

JUDGEMENT

(1.) The petitioner, in WP (C) No. 3951/08, which was dismissed by the learned Single Judge as per the impugned judgment dated 15/12/2008, is the appellant herein. The petitioner had challenged Ext. P6 order of the Kerala State Election Commission, declaring that the petitioner has rendered himself disqualified by the Kerala Local Authorities (Prohibition of Defection) Act, 1999 to continue as a member of the panchayat on the ground that he had voluntarily given up his membership of the party on whose ticket he was elected as the member of the panchayat. Learned Single Judge declined to interfere with Ext. P6 order and dismissed the writ petition. The petitioner has come up in appeal against the said judgment.

(2.) The alleged act of disqualification insofar as the writ petitioner is concerned emanated from the election to the post of Vice President of the Thrikadavoor Grama Panchayat held on 17/07/2006. The case of the petitioner before the Election Commission, 2nd respondent herein was that the President of the Congress Committee had issued a whip to all the members of the panchayat belonging to the Congress to cast their votes in favour of one Kochukuttan Pillai, a Congress (M) candidate in the elections held on 17/07/2006. Sri. Kochukuttan Pillai secured 9 votes. The allegation was that the petitioner, who was also a member owing allegiance to the Congress (I) party, deliberately disobeyed the whip and had proceeded to stand for the election himself. He managed to secure 12 votes and it turned out that 10 votes were cast by members belonging to LDF, one was by an independent candidate and the remaining one was cast by the writ petitioner himself. It is on this premise that Ext. P1 petition was filed before the original 2nd respondent, the State Election Commission invoking the powers of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.

(3.) It was contended that the writ petitioner had obviously been elected only on the basis of the votes cast by the LDF and not the vote cast by the officially sponsored candidate; the writ petitioner has conducted himself in such a way that he should be treated as having voluntarily given up the membership of the party on whose ticket he was elected as the member of the panchayat. In Ext. P1, it was alleged that the writ petitioner had disobeyed the whip issued by the District President of the Congress Committee.