K.M.Joseph

ANIL K.NARENDRAN J.

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 political party Indian National Congress (INC), which is part of the coalition 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. The appellant herein filed O.P.Nos.26/2011, 27/2011 and 28/2011 seeking a declaration that respondents 1 to 3 herein have become subject to disqualification on the ground of defection as provided by Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (hereinafter referred to as ‘the Act’). The 1st respondent herein, the 1st petitioner in the writ petition, filed O.P.Nos.31/2011 and 32/2011 seeking a declaration that the appellant herein and one Smt. Valsala, who is the elected member of Ward No.10, have become subject to disqualification on the ground of defection under Section 3 of the Act. The 5th respondent herein, the additional 3rd respondent in the writ petition, filed O.P.Nos.34/2011, 35/2011 and 36/2011 seeking a declaration that respondents 1 to 3 herein have become subject to disqualification on the ground of defection under Section 3 of the Act.

4. 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.

5. Respondents 1 to 3 herein filed their objections to Exhibits P3 to P5 Original Petitions, contending that the petitions are filed with ulterior motives to wreck vengeance. The objection filed by the 3rd respondent herein in O.P.No.28/2011 is marked as Exhibit P6 in W.P.(C)No.26153/2012. Respondents 1 to 3 herein contended that, while holding the post of the President of Manimala Grama Panchayat the appellant acted against the interest of the people of the Grama Panchayat, Congress Parliamentary Party and UDF. Therefore, both the Parliamentary Party and UDF directed the appellant to resign from that post. But the appellant disobeyed the said decision and continued as President. Hence, the Parliamentary Party and UDF decided to move a no-confidence motion against the appellant, which was signed by respondents 1 to 3 herein, who are members of Congress Party and 5 other members of UDF. Whip and direction were given to all members of INC and UDF to support the no- confidence motion. But the appellant and another Congress member named Valsala defied the direction given by the Parliamentary Party and purposely voted against the no- confidence motion. On 12/7/2011, Smt.Nirmala Manoj Kumar was elected as the Whip of INC and thereafter the appellant has no authority to issue whip to the members. DCC President never issued any direction in the matter, as alleged in the petition. The no-confidence motion was moved as per the decision of INC and UDF. Respondents 1 to 3 herein acted as per the whip issued by Smt.Nirmala Manoj Kumar, who is the INC whip. They have not voluntarily abandoned membership of Congress Party, as alleged. Respondents 1 to 3 herein or any other UDF members never betrayed their Political Party or electorate. Respondents 1 to 3 herein neither supported LDF nor received the support of LDF. UDF is still in power in Manimala Grama Panchayat. The no- confidence motion was moved as per the directions of the INC and UDF and all UDF members and Congress members, except the appellant and another, voted in favour of the no-confidence motion.

6. The State Election Commission found that, respondents 1 to 3 herein have moved no-confidence motion against their own party President without the knowledge and consent of the INC or the President of the District Congress Committee (DCC) and the 1st respondent herein has also contested for the post of President against the official candidate of INC and respondents 2 and 3 herein supported him in that election. The above conduct of respondents 1 to 3 herein would abundantly prove that they had voluntarily given up their membership of the party. The Commission also found that, there is non-compliance of Rule 4(1)(i) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (hereinafter referred to as 'the Rules'), as amended by SRO No.913/95, and as such the second limb of Section 3(1)(a) of the Act in relation to violation of whip is not attracted. Therefore, by Exhibit P10 order the State Election Commission allowed O.P.Nos.26/2011, 27/2011, 28/2011, 34/2011, 35/2011 and 36/2011 and declared that respondents 1 to 3 herein are disqualified for being members of Manimala Grama Panchayat and they are also declared as disqualified to contest as candidates in an election to any Local Authority for 6 years from the date of order, as provided by Section 4(3) of the Act. Insofar as O.P.Nos.31/2011 and 32/2011 filed by the 1st respondent herein are concerned, the Commission found that the contention raised therein that, the appellant herein and Smt. Valsala have become subject to disqualification on the ground of defection under Section 3 of the Act, on account of violation of the direction issued by the whip of the Parliamentary Party is totally untenable. Therefore, the State Election Commission dismissed O.P.Nos.31/2011 and 32/2011.

7. Aggrieved by Exhibit P10 order passed by the State Election Commission disqualifying respondents 1 to 3 herein for being members of Manimala Grama Panchayat and from contesting as candidates in an election to any Local Authority for 6 years from the date of order, they have approached this Court in W.P.(C)No.26153/2012 seeking various reliefs. By judgment dated 18/7/2013 the learned Single Judge set aside Exhibit P10 order passed by the State Election Commission and held that respondents 1 to 3 herein shall remain as elected members of Manimala Grama Panchayat and shall exercise all such powers. The learned Single Judge came to the conclusion that, the decisions of this Court in Varghese v. Kerala State Election Commission (2009 (3) KLT 1), Dharma Mani v. Parassala Block Panchayat (2009 (3) KLT 29), etc., relied on by the Election Commission in Exhibit P10 order, cannot be read as laying down a principle that, supporting a no-confidence motion against a member of the same political party would amount to voluntarily giving up membership of that party. In all those cases there is a finding by the Election Commission that the persons who are alleged to have been disqualified or defected had the support of the opposition. Therefore, the learned Single Judge held that, in Exhibit P10 order the Election Commission had proceeded to consider irrelevant materials to draw an inference that respondents 1 to 3 herein have defected from their political partly. It is challenging the said judgment of the learned Single Judge, the appellant is before us in this writ appeal.

8. We heard the arguments of the Learned Senior Counsel for the appellant, the learned counsel for respondents 1 to 3, the learned Standing Counsel for the 4th respondent and the learned counsel for the 5th respondent.

9. On behalf of the appellant it was contended that, the reasoning of the learned Single Judge in the judgment impugned is contrary to the decisions of this Court in Varghese v. Kerala State Election Commission (2009 (3) KLT 1), Dharma Mani v. Parassala Block Panchayat (2009 (3) KLT 29), Nazeerkhan S. v. Kerala State Election Commission and another (2009 (1) KHC 681), Shiney Augustine v. Kerala State Election Commission and another (2009 (4) KHC 527), Chinnamma Varghese v. State Election Commission of Kerala (2010 (3) KLT 426) and Muhammedkunhi and another v. K. Abdulla and another (2010 (4) KLT 736). Disloyalty to the political party to which a member belongs is the criterion for determining whether he is entailing disqualification on the ground of defection and violation of whip is not necessary to attract or entail such disqualification. Further, unseating an elected President of one's own party is the greatest form of disloyalty and voluntary giving up membership of that political party. Therefore, according to the learned Senior Counsel, the judgment of the learned Single Judge interfering with Exhibit P10 order passed by the State Election Commission is wholly unsustainable in law and liable to be interfered with in this Writ Appeal. The Learned Standing Counsel for the State Election Commission supported the reasoning and findings of the Election Commission in Exhibit P10 order.

10. Per contra, on behalf of respondents 1 to 3 it was contended that, their conduct in expressing no-confidence on the leader, without taking the aid or support of any opposition party and without any floor-crossing or shifting of political loyalty would not constitute defection in terms of Section 3 of the Act. There was no destabilization in the Panchayat and after the no- confidence motion UDF is still in power. The decisions of this Court relied on by the learned Senior Counsel for the appellant are distinguishable on facts. Further, the findings of the State Election Commission in Exhibit P10 order that, after the no- confidence motion the 1st respondent contested for the post of President against the official candidate of Congress Party with the support of respondents 2 and 3 and that, during the pendency of the Original Petitions the 1st respondent resigned from that post and paved way for the Kerala Congress (M) member to become president are not supported by any pleadings in the Original Petition filed before the Election Commission. Therefore, the judgment of the learned Single Judge interfering with Exhibit P10 order passed by the State Election Commission is perfectly legal and no interference is called for. The learned counsel relied on the judgment of the Apex Court in Balchandra L. Jarkiholi v. B.

S. Yeddyurappa (2011 (7) SCC 1), and that of this Court in Chinnamma Varghese v. State Election Commission of Kerala (2010 (3) KLT 426) and Shiney Augustine v. Kerala State Election Commission (Judgment dated 4/10/2010 in W.A.No.2324/2009 arising out of the decision reported in 2009 (4) KHC 527). The learned counsel contended further that, this Court in exercise of its appellate jurisdiction will not interfere with the view taken by the learned Single Judge if it is a plausible view and not an arbitrary or perverse view.

11. In the case on hand, it is not in dispute that the appellant and respondents 1 to 3 have contested the General Elections- 2010 to the Local Self Government Institutions in Kerala held in October, 2010, as candidates of INC. This is further borne out from Exhibits P2 to P4, P10, P13, X1 and also the evidence of PWs 1 to 3 and RWs 1, 3 and 4. It is also not in dispute that after the election the appellant was elected to the post of the President of Manimala Grama Panchayat as decided by the Congress Parliamentary Party. This is further borne out from Exhibits P14 to P16, the whip issued to respondents 1 to 3 by the Congress Parliamentary Party. In the meeting of the Congress Parliamentary Party held on 6/11/2010, the appellant was elected as the Whip. The 1st respondent as RW1 admitted, in cross- examination, that he had received the direction issued by the appellant in his capacity as the Whip, in relation to the election to the post of the President and Vice-President held on 8/11/2010 and that he had obeyed those directions. The oral evidence of RWs 1, 3 and 4 together with Exhibits P14 to P16 make it abundantly clear that the appellant was elected as the Whip of the Congress Parliamentary Party on 6/11/2010, and as the President of Manimala Grama Panchayat in the election held on 8/11/2010, as decided by the Congress Parliamentary Party.

Similarly, the fact that respondents 1 to 3 have supported the no-confidence motion moved by them is also not in dispute. This is further borne out from Exhibits P25, P26 and P27, the ballot papers of respondents 1 to 3. Exhibit P24 is a copy of the minutes prepared by the Secretary of Block Panchayat to the effect that the no-confidence motion has been passed with the support of majority and Exhibit P31 is a declaration given by him to the effect that the appellant stands removed from the post of President.

12. The appellant contended that, respondents 1 to 3 with the support of the elected members of Kerala Congress (M) moved the no-confidence motion against him without the permission of the Congress Party as well as Congress Parliamentary Party. The DCC and its President were against the proposal to move a no-confidence motion and on receiving the notice on no-confidence motion the DCC President issued a whip on 21/7/2011 to all the elected members of the Congress Party to vote against the said motion which was tabled for discussion on 28/7/2011. The appellant has also issued a direction to all the elected members of Congress Party, in his capacity as the Whip of the Congress Parliamentary Party, to defeat the no-confidence motion. But, in gross defiance of the whip respondents 1 to 3 voted in favour of the no-confidence motion and ousted the appellant from the post of the President of Manimala Grama Panchayat, on 28/7/2011, and thus they have committed defection.

13. The appellant as PW1 gave evidence regarding the no- confidence motion moved by respondents 1 to 3 and certain others. According to PW1, respondents 1 to 3 moved no- confidence motion based on Exhibit P17 notice without the knowledge and consent of the Congress Party or the Congress Parliamentary Party and that such a move was made against the decision of the Congress Party and the Congress Parliamentary Party. The DCC President has also issued Exhibit P18 direction to all the elected Congress Party members of Manimala Grama Panchayat to vote against the no-confidence motion and it was also made clear in Exhibit P18 that, those who violate the direction contained therein will be treated as having voluntarily given up their membership of the Congress Party. The DCC President, who was examined as PW2, has deposed that he had issued Exhibit P18, directing the Congress members in the Panchayat to vote against the no-confidence motion which was placed for discussion on 28.7.2011 and that the said motion was moved without the knowledge or consent of the Congress Party. PW2 further deposed that, in Exhibit P18 it has stated that the Congress Members who disobey his direction contained therein will be treated as having voluntarily given up their membership of the Congress Party and disciplinary proceedings will be initiated against them. PWs 1 and 2 have stated that the direction issued by them are sent by post and copies of those directions were given to the Secretary of the Grama Panchayat and also to the Secretary of the Block Panchayat who tabled the no-confidence motion for discussion. Exhibit P28 is the postal receipts evidencing that such direction was sent to respondents 1 to 3 by the appellant and PW2.

14. Exhibit P5 is a copy of the letter given by PW2 to the Secretary of Manimala Grama Panchayat intimating that he had given direction to all Congress Party members to vote against the no-confidence motion which was placed for discussion on 28/7/2011. Exhibit P20 is a copy of letter given by PW2 to the Secretary of Kanjirappally Block Panchayat intimating that he had given direction to all Congress Party members to vote against the no-confidence motion. Exhibit P22 is the receipt given by the Secretary of Kanjirappally Block Panchayat regarding acceptance of Exhibit P23. Exhibits P6, P7 and P8 are the copies of the directions given by PW2 to the Secretary of Manimala Grama Panchayat. Exhibits P19 is a copy of the same direction given by PW2 to the Secretary of Kanjirappally Block Panchayat. PW2 deposed that respondents 1 to 3 have defied his directions and voted in favour of the no-confidence motion and ousted the appellant from the post of President and that they have been suspended from Congress party pursuant to their conduct of disobeying the decision of the Congress party.

15. Per contra, respondents 1 to 3 contended that the appellant, after his election to the post of the President of Manimala Grama Panchayat, was involved in mismanagement and was ineffective. In the meeting of the Congress Parliamentary Party of Manimala Grama Panchayat held on 12/7/2011 the 1st and 2nd respondents were elected as the Parliamentary Party leader and Whip, respectively. Then the appellant was directed to resign from the post of President. As he did not oblige the Congress Parliamentary Party and UDF decided to move a no-confidence motion against the appellant. Respondents 1 to 3 and other members of UDF signed that motion and the Chief Whip issued direction to all the elected members of INC to support the no-confidence motion. But, the appellant and another elected member by name Valsala defied the above direction and voted against the no-confidence motion and thus committed defection. According to them, the no- confidence motion was moved as per the decision of the Congress Parliamentary Party and UDF and while doing so they have acted in terms of the whip of Congress Parliamentary Party. Therefore, they have neither voluntarily abandoned their membership from INC nor committed any defection for being disqualified from the membership of the Grama Panchayat. They neither supported LDF nor received the support of LDF. After no-confidence motion UDF is still in power in Manimala Grama Panchayat. Respondents 1 to 3 have a further case that, as per the agreement arrived at among the coalition partners of UDF, the presidentship was allotted to Congress members for the first three years and the remaining term of two years has been given to the nominee of Kerala Congress (M).

16. The 1st respondent as RW1 deposed that, the decision to remove the appellant from the post of President was taken by Congress Parliamentary Party and that PW2 was not competent to give any direction to the members of the Panchayat as there was no supporting decision taken by the DCC. RWs 2 to 8, RW10 and RW11 were examined to support the case of respondents 1 to 3 that DCC did not take any decision to vote against the no- confidence motion and that the majority of the Congress Parliamentary Party members as well as the UDF Parliamentary Party members decided to move such a motion and to remove the appellant from the post of President. Hence they have not committed any defection.

17. The Kerala Local Authorities (Prohibition of Defection) Act, 1999, was enacted to prohibit defection among members of local authorities in the State and to provide for disqualification of the defecting members of the local authorities. Section 3 of the Act, which deals with disqualification on ground of defection, reads under;

“3. Disqualification on ground of defection:- (1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act,-

(a) if a member of a local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting,-

(i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of a Standing Committee or the Chairman of a Standing Committee; or

(ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or in an voting on a no-confidence motion against any one of them expect a member of a Standing Committee;

(b) if an independent member belonging to any coalition withdraws from such coalition or joins any political party or any other coalition, or if such a member, contrary to any direction in writing issued by a person or authority authorised by the coalition in this behalf in the manner prescribed, votes or abstains from voting,-

(i) in a meeting of a Municipality, in an election of its President, Vice President, a member of a Standing Committee or the Chairman of the Standing Committee; or

(ii) in a meeting of a Panchayat in an election of its President, Vice-President, a member of a Standing Committee or the Chairman of the Standing Committee; or in a voting on a no- confidence motion against any one of them except a member of a Standing Committee;

(c) if an independent member not belonging to any coalition, joins any political party or coalition; he shall be disqualified for being a member of that local authority.

Explanation:- For the purpose of the section an elected member of a local authority shall be deemed to be a member belonging to the political party if there is any such party, by which he was set up as a candidate for the election.”

18. The expression 'defection' as such is not defined in the Act. But the Legislature has left the disqualification to be decided on the defined conduct of the member. Going by Section 3 of the Act, a member can be disqualified if he has ‘voluntarily given up’ the membership of the political party to which he belongs or acts in defiance of a whip or direction issued by that political party. The intention of the legislature is that, a member who has violated the whip or has voluntarily given up the membership of the political party to which he belongs shall be disqualified. Therefore, the disqualification for voluntarily giving up the membership of the political party to which one belongs is not dependent on any violation of the whip. It is not necessary to hold that the member has violated the whip in order to conclude that he has voluntarily given up the membership of the political party to which he belongs. Therefore, grounds for disqualification under the first and second limbs of Clauses (a) and (b) of Sub- section (1) of Section 3 of the Act are distinct and are not interlinked.

19. It is to check erosion of the values in democracy the Tenth Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. The Tenth Schedule to the Constitution of India deals with disqualification on the ground of defection of a member of either House of the Parliament and that of a member of the Legislative Assembly or the Legislative Council of a State. The constitutional validity of the Constitution (Fifty-second Amendment) Act, 1985, in so far as it seeks to introduce Tenth Schedule to the Constitution was under challenge before a Constitution Bench of the Apex Court in Kohoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651). The Apex Court observed that, “the object underlying the provisions in the Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a member of the House, on the grounds of disqualification specified in paragraph 2 of the Tenth Schedule.” The Apex Court observed further that, “a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Paragraphs 43 and 44 of the judgments read thus;

“43. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.

44. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival. Intra party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice and Procedure" (1989 Edn. page 119) say:

"Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy."

20. In Ravi S. Naik v. Union of India (1994 Suppl. (2) SCC 641) the Apex Court examined the scope of the words ‘voluntarily giving up membership’ and it was held that they are not synonymous with 'resignation' and have a wider connotation. Paragraph 11 of the judgment reads thus;

“11. ……… The words "voluntarily given up his membership" are not synonymous with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the member ship of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

21. Later, a Constitution Bench of the Apex Court in Rajendra Singh Rana v. Swami Prasad Maurya (2007 (4) SCC 270) approved the dictum laid down in Ravi S. Naik’s case (supra). Paragraph 49 of the judgment reads thus;

“49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2 (1)(a) of the Tenth Schedule. ……. ”

22. Coming to the decisions of this Court, in Varghese v.

Kerala State Election Commission (2009 (3) KLT 1), the appellants, who were elected to the Municipal Council as official candidates of the Indian National Congress and having continued so in the Council, have voted in favour of the no-confidence motion moved by the rival political parties. The Division Bench of this Court held that, if a member or a group of the elected members of the political party takes a different stand from that of the political party as such, and acts against the policies of the political party in which they are members, it is nothing but disloyalty. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. The Division Bench declared that, the dictum laid in Naseera Beevi v. State Election Commission (2004 (1) KLT 1108) that leaving the parliamentary party and exercising the right to vote according to the choice of the elected member would not attract the disqualification on the ground of voluntarily giving up membership in the political party is not good law. Paragraphs 8, 9 and 10 of the judgment read thus;

“8. However, placing heavy reliance on another Single Bench decision in Naseera Beevi v. State Election Commission, 2004 KHC 171 : 2004 (1) KLT 1108, the learned Senior Counsel for the appellants would contend that every objectionable conduct does not automatically lead to the inference of voluntarily leaving the political party. In the above case a few members of a political party decided to form a separate group in the 'parliamentary party' of that political party and that was informed to the Secretary of the Grama Panchayat. It was in that context the learned Single Judge took the view that 'there is a distinction between membership in the parliamentary party and the membership in the political party. What has been made objectionable under law is the voluntary leaving of the membership in the political party. Leaving the parliamentary party may be a circumstance, which may indicate that the incumbent has left the political party'. It is to be noted that the letter of the group was dated 08/01/2003 and the No Confidence Motion was on 13/01/2003. The members who had decided to sit as a separate block had voted in favour of the No Confidence Motion moved by the rival political parties and thereafter those members had been removed from the primary membership of the political party on 18/01/2003. The petitions for disqualification was filed on 24/01/2003 before the State Election Commission. A subsequent election to the posts of President and Vice President of the Panchayat was held on 07/02/2003, wherein the aforementioned members were elected as the President and the Vice President with the support of the rival political parties. It appears the learned Single Judge had omitted to take note of the fact that the conduct of the revolting members was not the letter given to the Secretary to the Grama Panchayat to form a separate block; those members had in fact supported the No Confidence Motion moved by the rival political parties. Thus the inevitably inferential conduct was the shifting of loyalty. Loyalty to the party is the norm. To vote against the party is disloyalty. It was this principle as stated in Griffith and Ryle on Parliamentary Functions, Practice and Procedure which was taken note of by the Supreme Court in the celebrated decision in Kihota Hollohan v. Zachillhu, 1992 KHC 694 : 1992 Supp. (2) SCC 651 : AIR 1993 SC 412.

The Apex Court held that 'any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival.' Referring to the object behind the 10th Schedule to the Constitution of India dealing with disqualification on the ground of defection, it was held therein that, 'the provision is to curb the evil of political defection motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The only remedy would be to disqualify the member ...' The Father of our Nation had foreseen the possibility of such cancerous and endangering tendencies in the practice of democracy and hence only the Mahatma said that politics without principle is a vice. No doubt politics is an art. But the beauty of the art is lost when no value is attached to the art. It is to check erosion of the values in democracy the 10th Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. Looking from that angle we find it difficult to agree with the dictum in Naseera Beevi's case. Not only that, there is no party as 'parliamentary party'. That expression only denotes the wing of the elected members of the political party. Therefore, if a member or a group of the elected members of the political party takes a different stand from that of the political party as such, and acts against the policies of the political party in which they are members, it is nothing but disloyalty. The moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. In Naseera Beevi's case the rebel group in the parliamentary wing of the political party concerned had not only formed a separate group, but they had voted in favour of the No Confidence Motion moved by the rival political party. Thus, by their conduct of being disloyal to the political party in which they were members and by voting as they pleased independent of the political party's declared policy, they had incurred the disqualification. In view of both factual and legal position as above, the dictum laid in Naseera Beevi's case that leaving the parliamentary party and exercising the right to vote according to the choice of the elected member would not attract the disqualification on the ground of voluntarily giving up membership in the political party is not good law. Hence the same is overruled. We also take note of the fact that the judgment of the Single Judge in Naseera Beevi's case had been set aside by the Division Bench by judgment dated 13/07/2005 in WA No. 1127/2004, though on a different ground.

9. The learned Senior Counsel Sri. Ramakumar contends that in modern democracy the elected member is free to vote according to his conscience, in the absence of a specific whip, particularly in view of the modern trends in democracy - intra party groups. We are afraid, the Court will not be justified in taking judicial notice of such developments and in rewriting the law. The Court shall only analyse the facts and decide the case in accordance with law and upholding the spirit of laws. The law, as it stands now, is unambiguously clear that one has to be loyal to his political party. The situation would be different if the political party itself, taking note of such strange realities, permits the elected members to cast conscience vote. In such situations the whip itself is for decision by the individual concerned according to his conscience. The Oxford dictionary defines conscience to mean 'the part of your mind that tells you whether your actions are right or wrong'. In the absence of a specific whip for conscience vote, an elected member, under law, is entitled and liable to cast only a conscious vote, being aware of the consequences of his decision, in terms of S.3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 on disqualification on the ground of defection on account of voluntarily giving up membership in the political party. Conscience vote is hence a matter of express whip in the absence of which an elected member is bound by the policies of his political party and he can cast only a conscious vote. That is nothing but an expected expression of his obligation to the political party and responsiveness to the people, by doing things carefully and correctly and if not the conduct would amount to betrayal of the political conscience which is impermissible under law. According to Harry S. Truman 'Democracy is based on the conviction that man has the moral and intellectual capacity, as well as the inalienable right, to govern himself with reason and justice'. The reason and justice are the two mandates of the conscious vote under S.3 of the Act. There is no case that the political party in which they belonged had given them the whip to vote according to their conscience.

10. Indisputably the writ appellants, who were elected to the Municipal Council as official candidates of the Indian National Congress and having continued so in the Council, have voted in favour of the No Confidence Motion moved by the rival political parties on 21/04/2008 and by the said conduct they had incurred the disqualification of voluntarily giving up membership in the political party ”

23. In Dharma Mani v. Parassala Block Panchayat (2009 (3) KLT 29) a learned Single Judge of this Court held that, from the conduct of the petitioners, who were elected as official candidates of the Indian National Congress, in moving the no-confidence motions against the President and the Vice President of the Panchayat and voting in favour of the no- confidence motions and their subsequent conduct in getting the petitioner in W.P.(C)No.337/2009 elected as the President with the support of the Left Democratic Front, an irresistible inference can be drawn that they have voluntarily given up their membership in the Indian National Congress. Paragraphs 16, 17 and 18 of the judgment read as under;

“16. In the instant case, it is not in dispute that the petitioners were elected to the Parassala Block Panchayat as official candidates of the Indian National Congress. The Indian National Congress is admittedly a political party registered under Section 29A of the Representation of the People Act, 1951. It is also not in dispute that they had actively participated in the No Confidence Motions moved by the opposition against the President and Vice President, of the Parassala Block Panchayat, who were also official candidates of the Indian National Congress. The petitioners are admittedly signatories to the No Confidence Motions and the motions were carried with their support. Though their contention that no whip was issued was accepted by the Commission, the Commission disqualified them on the ground that they have voluntarily given up their membership of the Indian National Congress. Though the learned counsel for the petitioners contend that the finding of the Commission that the petitioners had acted contrary to the directions issued by PW2, the President of the Thiruvananthapuram District Committee of the Indian National Congress cannot be sustained, I am of the opinion that on the admitted facts of this case, it is not necessary to go into the correctness of the said finding.

17. Under the Act, a member can be disqualified if he has voluntarily given up the membership of the political party to which he belongs or acts in defiance of a whip/direction issued by the political party. Disqualification for voluntarily giving up the membership of one's party, is not dependant on the violation of the whip. The intention of the Act is that the member who has violated the whip or has abandoned the membership of the political party to which he belongs shall be disqualified. It is not necessary to hold that the member has violated the whip in order to hold that he has voluntarily abandoned the membership of his political party. The grounds for disqualification are distinct and are not interlinked. Therefore even if this Court were to hold that the petitioner before the Commission has not proved that PW2 had issued and served on the writ petitioners a direction regarding the voting on the No Confidence Motions that were tabled on 14/05/2008, the Commission was justified in holding that the petitioners have voluntarily abandoned their membership in the Indian National Congress.

18. In the election held on 10/06/2008 after the No Confidence Motions carried, to elect a new President the petitioner in WP (C) No. 337 of 2009 was elected as the President of the Parassala Block Panchayat with the support of the petitioners in the other two writ petitions and the five members of the Left Democratic Front. The official candidate of the Indian National Congress was defeated. From the conduct of the petitioners in moving the No Confidence Motions against the President and the Vice President of the Panchayat and voting in favour of the No Confidence Motions and their subsequent conduct in getting the petitioner in WP (C) No. 337 of 2009 elected as the President with the support of the Left Democratic Front, an irresistible inference can be drawn that they have voluntarily given up their membership in the Indian National Congress. As held by the Apex Court in Rajendra Singh Rana and others v. Swami Prasad Maurya and others (supra), on the admitted facts, no further enquiry or evidence is required to hold that their action comes within the purview of S.3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. The pleadings and the evidence before the Commission also justify the said conclusion. The Commission was therefore right in holding that the petitioners have incurred disqualification by voluntarily giving up their membership of the Indian National Congress.”

24. The judgment in Dharma Mani’s case (supra) was confirmed in appeal by a Division Bench of this Court in W.A.Nos.770/2009, 795/2009 and 798/2009. The Division Bench further held that, the observations and principles set out by the Apex Court in Kohoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651), though made while considering the Tenth Schedule to the Constitution of India, aptly apply to the present case also. Paragraphs 7, 8 and 9 of the said judgment dated 6/4/2009 read thus;

“7. However, without going into minute details in this regard, the second ground, namely, 'voluntarily giving up their membership' appears to be apparent from the evidence and especially the conduct of the appellants. It is well settled that, the words 'voluntarily giving up membership of the political party' is not to be equated with ceasing to be a member of the party by resignation and that even from the conduct of the candidate or elected representative if any inference can be drawn that, his conduct indicates or substantiates the fact of his voluntarily giving up his membership, he is liable to be disqualified. The Honourable Supreme Court in the case of Kohoto Hollohan v. Zachillhu (1992 Supp (2) SCC 651), while considering the object of the introduction of 10th Schedule to the constitution of India, observed that, ……… ……….

8. In our view, these observations and principles set out by the Apex Court, though made while considering 10th Schedule of the Constitution of India, aptly apply to the present case also. The appellants, who were elected from the Indian National Congress Party were parties to elect the President and Vice President of the Panchayat. Whatever may be their differences with the President and the Vice President, they could not have joined hands with the opposite LDF party, to move no confidence motion against their own partymen, and vote against their own men. Further, the fact that these appellants proposed and seconded the new President and Vice President belonging to the opposite group, clearly indicates that, they were aligning themselves with the LDF and were not loyal to their party on the symbol of which they were elected. In our view, this conduct of the appellants, joining hands with the opposite party, clearly establishes that they had voluntarily given up their membership in the party.

9. In our considered view, the State Election Commission and the learned Single Judge were justified in holding that, even though the appellants had not tendered their resignation to the party, by their own conduct, have voluntarily given up the membership of the political party to which they belong, and attracted the disqualification as prescribed under Section 3 of the Act. ”

25. In Nazeerkhan S. v. Kerala State Election Commission and another (2009 (1) KHC 681) a Division Bench of this Court dismissed the Writ Appeal confirming the reasoning and finding of the learned Single Judge that, the very act by which the writ petitioner had stood for election to the post of Vice-President of the Panchayat against the official Congress (I) candidate and that he had been elected on the basis of the votes cast in his favour en-bloc by the opposition Left Democratic Front clearly prove the writ petitioner having acted in such a manner as to render himself disqualified under the provisions of the Act. Paragraph 13 of the judgment reads thus;

“13. We are also in agreement with the reasoning and findings of the learned Single Judge that the very act by which the writ petitioner had stood for election to the post of Vice President of the panchayat against the official Congress (I) candidate and that he had been elected on the basis of the votes cast in his favour enbloc by the opposition LDF is clearly proof of the petitioner having acted in such a manner as to render himself disqualified under the provisions of the Act. We are also in agreement with the findings of the learned Single Judge that a Court exercising power under Art.226 of the Constitution of India in proceedings, where in a challenge is mounted a challenge against the order passed by the State Election Commission is only expected to act in judicial review of the order impugned and not approach the same as an Appellate Court.”

26. In Shiney Augustine v. Kerala State Election Commission and another (2009 (4) KHC 527) the writ petitioner and the 2nd respondent were elected as members of Vannappuram Grama Panchayat as candidates of Kerala Congress (J). The Grama Panchayat has 16 members, out of which 5 of them including the writ petitioner and the 2nd respondent belonged to Kerala Congress (J). The writ petitioner was elected as President of the Grama Panchayat and one A.J.Jose belonging to CPI (M) was elected as Vice President. A no-confidence motion signed by different members, including the writ petitioner, was carried against A.J.Jose on 13/11/2008. The 2nd respondent filed a petition before the State Election Commission seeking a declaration that the writ petitioner has ceased to be a member of the Panchayat. The writ petitioner was attributed of having voted against a direction duly issued to her to vote against the no- confidence motion and she was also charged of having voluntarily given up the membership of the political party to which she belonged. After considering the evidence on record, the State Election Commission allowed the petition holding that the writ petitioner who was elected to the Panchayat as a member of Kerala Congress (J) under the banner of LDF has deserted and voluntarily given up her membership in that political party, though she is not liable to be disqualified for violating any duly issued whip. The said order was under challenge in W.P.(C). No.19694/2009 contending that, it having been found that no whip was duly issued to vote against the no-confidence motion moved against A.J.Jose, the further finding of the Commission that the writ petitioner has voluntarily given up membership of Kerala Congress (J) is without the authority of law and wholly unreasonable. It was further contended that on the basis of the pleadings in the petition, the cause of action projected is solely on the basis of the action in relation to the voting in the meeting where the no-confidence motion against A.J.Jose was considered and any other act, if at all, that could be attributed against her, as found by the Commission, was clearly beyond the prescribed period of limitation. Per contra, the 2nd respondent contended before this Court that, by signing the no-confidence motion against A.J.Jose and by voting in support of the said no- confidence motion against the interest of the coalition LDF, of which the political party Kerala Congress (J) was part, the writ petitioner had clearly demonstrated her segregation from Kerala Congress (J). Further, the act of the writ petitioner of having filed W.P.(C).No.29517/2008 before this Court and of having obtained judgment on the assertion that she has quit Kerala Congress (J) abundantly show that it is more than admitted that she no longer continues her affinity to Kerala Congress (J). The learned Single Judge upheld the order of the Election Commission, holding that, with the pleadings and evidence, the Commission cannot be found fault with, for having concluded that the writ petitioner had voluntarily given up her membership in the political party to which she belonged, namely, Kerala Congress (J). The judgment of the learned Single Judge was under challenge in W.A.No.2324/2009 filed by the writ petitioner. The Division Bench noticed that, the finding of the State Election Commission that the appellant/writ petitioner has voluntarily given up her membership of the political party Kerala Congress (J) was mainly relying on the averments in W.P.(C).No.29517/2008 filed by her before this Court and the judgment therein, copies of which were produced and marked as Exhibits P1 and P10 respectively before the Election Commission. But in the Original Petition filed before the Election Commission there is no reference at all to the averments made in W.P.(C).No.29517/2008, which was disposed of on 16/10/2008 after notice to A.J.Jose, the petitioner before the Election Commission. The only allegation in the said Original Petition was that, by voting in favour of the no-confidence motion, the appellant has acted against the interest of the political party which has set her up as a candidate in the elections and had voluntarily given up her membership of the Kerala Congress (J) party. The whip alleged to have been issued by the Kerala Congress (J) calling upon the appellant to vote against the no-confidence motion was also not proved before the Election Commission. In the absence of proper pleadings and evidence on record, the Division Bench concluded that the finding of the Election Commission that the appellant/petitioner has voluntarily given up her membership of the political party, Kerala Congress (J) cannot be sustained and hence allowed the Writ Appeal. In support of such conclusion, the Division Bench relied on the principle laid down in the judgment of this Court in Chinnamma Varghese v. State Election Commission of Kerala (2010 (3) KLT 426) that, it is only the specific avert act of voting or abstaining from voting contrary to any written direction issued by the political party on a no-confidence motion that tantamounts to defection.

27. In Chinnamma Varghese v. State Election Commission of Kerala (2010 (3) KLT 426) a Division Bench of this Court held that, “incurring of the disqualification under any one of the contingencies depends upon the existence of a definite set of facts, which are required to be specifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act. The Division Bench observed that, the rationale behind the insistence of a specific plea is that, it is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted against them and what are the rights or obligations sought to be enforced against them. The Division Bench held further that, no-confidence motion is essentially a matter of conscience of a member of the Panchayat and the Act, to some extent, restricts the free choice of such a member in this regard. The perceived distortions in the political morality prompted the law makers to introduce such provisions which curtail the right of the elected representatives of the various bodies to exercise their voting rights freely in certain contingencies. Paragraphs 19 to 23 of the judgment read thus;

“19. Incurring of the disqualification under any one of the above mentioned contingencies depends upon the existence of a definite set of facts, which facts are required to be specifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act.

20. The law of pleadings has been very definite in this country from at least 1930 onwards. In the judgment reported in Siddik Mohamed Shah v. Mt. Saran, AIR 1930 Privy Council 57 (1), the Privy Council held that no amount of evidence can be looked into upon a plea which was never put forward. The said principle had been approved by the Supreme Court in Kashi Nath v. Jaganat, 2003 KHC 1694 : 2003 (8) SCC 740 at paragraph 17 as follows:

'As noted by the Privy Council in Siddik Mohd. Shah v. Saran, AIR 1930 PC 57(1) and Trojan and Co. v. Rm. N. N. Nagappa Chetiar, AIR 1953 SC 235 when the evidence is not in line with the pleadings and is at variance with it and as in this case, in virtual self - contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon.'

21. The insistence upon a specific plea has a rationale behind it. It is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted against them and what are the rights or obligations sought to be enforced against them. Therefore, the order of the first respondent, insofar as it chose to permit evidence against the appellant herein to the effect that the appellant withdrew from the coalition of LDF, is without any pleading and therefore, in the light of the principle of law extracted earlier could not have been looked into. To that extent we are of the opinion that the first respondent as well as the learned Judge fell in error in coming to the conclusion that such a course of action is permissible in view of the decision of the Supreme Court reported in Sardul Singh v. Pritam Singh, 1999 KHC 1083 : 1999 (3) SCC 522 : 1999 SCC (Cri) 445 : AIR 1999 SC 1704. In the said judgment the Supreme Court at paragraph 12 observed as follows:

'It is well settled that notwithstanding the absence of pleadings before a Court or authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an opportunity to produce evidence or cross -

examine witnesses in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later.'

In our view the above observation is to be understood in its context. At any rate the law regarding the election disputes in this country always insisted upon a more stringent rules of pleading and proof.

22. Taking the case on hand, the activity of the appellant which was found to tantamount to withdrawal from the coalition is stated to be signing of the notice in the no confidence motion by the appellant herein. Even in the matter of an elected representative belonging to a political party such a signing of the notice of no confidence motion per se is not declared under the above mentioned Act to be an activity attracting disqualification on the ground of defection. It is only the specific overt act of voting or abstaining from voting contrary to any written directions issued by the political party on a no confidence motion that tantamounts to defection. If that is the legal position with regard to a member of the Panchayat belonging to a political party, a member of a coalition, in our opinion, cannot be logically said to have committed an act of withdrawal from the coalition which has the serious consequence of rendering such a member disqualified from being a member of the Panchayat, on the mere ground that he or she has signed the notice of no confidence motion.

23. No doubt in the case of the appellant, the appellant not only signed the notice of no confidence motion but also voted in favour of the no confidence motion which eventually resulted in the ouster of the President of the Panchayat who belonged to the LDF coalition. But coming to the question of voting there is nothing in the law which binds the appellant who is established to be an independent member of the Panchayat to vote in accordance with the desires of the coalition partners. No binding legal direction was ever issued against the appellant. A no confidence motion is essentially a matter of conscience of the voter (member of the Panchayat). The Kerala Local Authorities (Prohibition of Defection) Act, 1999, to some extent, restricts the free choice of the voter (member of the Panchayat) in this regard. Such restriction first came to be introduced by the amendment to the constitution and introduction of the Tenth Schedule to the Constitution with reference to the Members of the Parliament and the State Legislatures. The law makers thought it fit to bring in such restrictions on the free choice of the holders of the elected offices to vote in any manner as they please during their tenure. The perceived distortions in the political morality prompted the law makers to introduce such provisions which curtail the right of the elected representatives of the various bodies to exercise their voting rights freely in certain contingencies. In the ultimate analysis voting is nothing but a mode of expression of the opinion. Such restrictions, in our view, are required to be enforced strictly in accordance with the tenor of the law. If under the scheme of the Act voting or abstaining from voting contrary to the specific direction of either the political party or the coalition renders the person violating the whip disqualified on the ground of defection, the same conclusion cannot be logically reached in the cases of persons who are not obliged to obey such directions or against whom no direction whatsoever was ever legally issued on the ground that such a conduct would render such a person disqualified on the ground that the conduct would tantamount to withdrawing from the coalition.”

28. In Muhammedkunhi and another v. K. Abdulla and another (2010 (4) KLT 736) the writ petitioners and the 1st respondent were elected in the elections conducted in September, 2005 from different wards of Meenja Grama Panchayat. They contested election as candidates of Indian Union Muslim League (IUML) which is a constituent of the United Democratic Front (UDF). In the election the candidates set up by Indian Union Muslim League won 3 seats and the candidate set up by other constituents of UDF namely, Indian National Congress and Kerala Congress (M) won 2 seats and 1 seat, respectively. The Left Democratic Front and the Bharatiya Janata Party had 4 members each. The 1st respondent was elected as the President of the Grama Panchayat by the elected members of UDF and one Sobha from Indian Union Muslim League was elected as Vice-President. A no-confidence motion was moved against the 1st respondent, which was discussed in the meeting of the Grama Panchayat on 9/11/2009. Both the writ petitioners are signatories to the said no-confidence motion along with 4 members of BJP. They have also voted in favour of the motion along with 4 members of BJP and two members of CPI(M) and the motion was adopted. Another motion was moved against the Vice-President, which was also adopted. Petitions were filed before the State Election Commission to disqualify the writ petitioners on the ground of violation of the whip issued by the 1st respondent and also for voluntarily giving up the membership of the political party to which they belong. Before the State Election Commission, the writ petitioners contended mainly that, there was no direction from their political party not to vote against the no-confidence motion and they have voted based on the discussion on the motion against the 1st respondent and that they are still loyal workers of IMUL. After considering the contentions, the Election Commission allowed both petitions holding that the writ petitioners have voluntarily given up their membership in IUML in joining hands with the rival BJP. The Commission also took note of the fact that in the election to the post of President, the writ petitioner in W.P.(C)No.28051/2010 contested and won against the candidate of the Indian National Congress with the support of the petitioner in W.P.(C)No. 28056/2010 and members of the BJP. The learned Single Judge, relying on the judgment of the Apex Court in Ravi Naik’s case (supra), held that the conduct of the writ petitioners in signing the no-confidence motion along with the members of the BJP, voting in favour of the no- confidence motion against the 1st respondent, a member of the very same political party and against the then Vice-President who belonged to the UDF and voting against the candidates of the UDF in the subsequent election and the conduct of the petitioner in W.P.(C)No.28051/2010 in contesting and getting elected as President against the nominee of the UDF, will squarely attract the vice of disqualification and are sufficient to imply that they have voluntarily given up membership of the political party which set them up as candidates in the election. The learned Single Judge held further that, the contention raised by the writ petitioners that they had a free choice to vote in favour of the no- confidence motion, that too in a democratic way, after actively participating in the discussions as to the allegations raised in the no-confidence motion, cannot at all be countenanced, as they have chosen to unseat the elected President, a member from the same political party to which they belonged, by aligning themselves with political parties opposing their political parties and Front. It is brought to our notice by the learned Standing Counsel for the State Election Commission that, the judgment in W.P.(C)No.28056/2010 is pending in appeal in W.A.No.1471/2011.

29. In Celene Joy v. Kerala State Election Commission and another (Judgment dated 8/2/2012 in W.P.(C) No.30341/2011, 30350/2011, 30366/2011, 30380/2011 and 30407 of 2011) the writ petitioners contested in the election to Pampadumpara Grama Panchayat held on 27/10/2010 in the Congress (I) Party ticket, which was a constituent of United Democratic Front, which secured 11 seats and Left Democratic Front secured 3 seats. One seat was won by an independent candidate and another seat by an independent supported by Bharatiya Janata Party. In the election to the post of President and Vice-President of the Grama Panchayat took place on 8/11/2010 the writ petitioner in W.P.(C)No.30341/2011 (by name Yesodharan) was elected as the President, who secured 7 votes, whereas, another candidate (by name Sreemandiram Sasikumar) secured 6 votes and the candidate of Left Democratic Front (by name Shijumon Iype) secured 3 votes. One Tomy Thomas, the 2nd respondent in W.P.(C)No.30341/2011 and connected cases moved the State Election Commission contending that, Sreemandiram Sasikumar was the official candidate of Congress (I) Party for the post of President and the writ petitioners instead of voting for Sreemandiram Sasikumar, purposefully voted in favour of Yesodharan, which amounts to voluntarily giving up membership of the political party, rendering themselves disqualified in terms of Section 3 of the Act for defection. It was further contended that, in the election for the post of Vice-President the writ petitioners voted in favour of the candidate belonging to Kerala Congress (M), whereas, many of the Congress (I) members voted in favour of an independent candidate (by name Jancy George). However, one Sreelatha who was the official candidate of the United Democratic Front won the election as Vice-President of the Grama Panchayat. Before the State Election Commission, the writ petitioners contended that, they have not voted in favour any candidate belonging to rival party or coalition and they form a group by themselves in the same Congress (I) Party. They will incur defection only if they cross vote to a candidate of rival party or coalition. It so happened that the independent member who won election by the support of the Bharatiya Janata Party also voted in their favour. The Election Commission, after analysing the evidence, found that there is no violation of whip as no whip was issued by the Congress (I) Party. But, on the question whether their conducts amount to voluntarily giving up of membership of the political party, the Commission found that there was a decision of the Congress (I) Party to support Sreemandiram Sasikumar and from the conduct of the writ petitioner that they did not vote in favour of the said candidate an inference can be drawn that they have voluntarily given up membership of the political party. The said finding of the Election Commission was based on Exhibits X1(a) and X1(b) minutes of the Parliamentary Party meetings held on 10/11/2010 and 8/7/2011, respectively. It is discernible from Exhibit X1(a) minutes that the party members sought the opinion of Congress (I) Party about the candidate to be supported. Exhibit X1(b) minutes reflect that the decision of Congress (I) Party to support Sreemandiram Sasikumar was intimated to all party members. Added to this, the writ petitioners were supported by an independent candidate who won election by the support of Bharatiya Janata Party, which is not a constituent of United Democratic Front. The order passed by the Election Commission was under challenge in W.P.(C)No.30341/2011 and connected cases and a learned Single Judge of this Court, upheld the said order holding that the said finding of the Commission is in tune with the settled decisions of this Court. The learned Single Judge concluded that, the finding of the Tribunal that the writ petitioners did not vote in favour of Sreemandiram Sreekumar as directed by the Congress (I) Party is based on evidence. The further observation that the writ petitioner in W.P.(C) No.30341/2011 won the election to the post of President with the unethical alliance with Bharatiya Janata Party is also justified. There has been a defiant attitude on the part of the writ petitioners in not voting for the candidate as directed by the party to which they belonged. The mere fact that the writ petitioners chose yet another person within their party would not come to their shelter. These facts indicate that they have voluntarily given up membership of the political party to which they belong by their conduct. It is brought to our notice by the learned Standing Counsel for the State Election Commission that, the judgment in W.P.(C)No.30341/2011 and connected cases is also pending in appeal in W.A.No.413/2012.

30. In Balchandra L. Jarkiholi v. B. S. Yeddyurappa (2011 (7) SCC 1), relied by the learned counsel for respondents 1 to 3, 13 MLAs of the Karnataka Legislative Assembly, belonging to the Bharatiya Janata Party wrote identical letters to the Governor of the State, on 6/10/2010, indicating that they had been elected as MLAs on Bharatiya Janata Party tickets, but had become disillusioned with the functioning of the Government headed by Shri. B.S. Yeddyurappa, expressed their lack of confidence in the Government headed by Shri. Yeddyurappa and withdrew their support to the said Government. On the basis of the aforesaid letters, the Governor addressed a letter to Shri. Yeddyurappa, informing him that letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their support to the Government. A doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri. Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12/10/2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No.1/2010, praying to declare that all the said 13 MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution. Show-Cause notices were thereafter issued to all the 13 MLAs, informing them of the Disqualification Application filed by Shri. Yeddyurappa stating that, having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6/10/2010 to the Governor against his Government withdrawing the support given to the Government under his leadership. Answering the issues, the Speaker arrived at the finding that after having been elected from a political party and having consented and supported the formation of a Government by the leader of the said party, the MLAs other than Shri. M.P. Renukacharya and Shri. Narasimha Nayak, had voluntarily given up their membership of the party by withdrawing support to the said Government. The Speaker also observed that the Governor never elects the leader of the legislature party. Accordingly, from the conduct of the MLAs in writing to the Governor that they had withdrawn support, joining hands with the leader of another party and issuing statements to the media, it was evident that by their conduct they had become liable to be disqualified under the Tenth Schedule. In coming to the said conclusion, the Speaker placed reliance on the decisions of the Apex Court in Ravi S. Naik v. Union of India (1994 Suppl.

(2) SCC 641), Jagjit Singh v. State of Haryana (2006 (11) SCC 1), Rajendra Singh Rana v. Swami Prasad Maurya (2007 (4) SCC 270). The Speaker was of the view that by their conduct the MLAs had voluntarily given up the membership of the party from which they were elected, which attracted disqualification under the Tenth Schedule. The Speaker further held that the act of withdrawing support and acting against the leader of the party from which they had been elected, amount to violation of the object of the Tenth Schedule and that any law should be interpreted by keeping in mind the purpose for which it was enacted. The Speaker rejected the objection filed on behalf of MLAs (other than Shri. M.P. Renukacharya and Shri. Narasimha Nayak) and went on to disqualify them under paragraph 2(1)(a) of the Tenth Schedule to the Constitution with immediate effect. The said decision of the Speaker was under challenge in Writ Petition Nos.32660-32670/2010 filed before the High Court of Karnataka. The matter was heard by a Division Bench consisting of the Chief Justice and Justice N. Kumar. The Chief Justice upheld the order of disqualification passed by the Speaker. Justice N. Kumar differed with the view of the Chief Justice regarding the interpretation to be placed on Paragraph 2(1)(a) of the Tenth Schedule to the Constitution and wrote a separate judgment. The judgment of Chief Justice and Justice N. Kumar dated 18/10/2010 is reported in ILR 2010 KAR 4767 (Sri. Gopala Krishna Belur and others v. Sri. B. S. Yeddyurappa and another). In the judgment delivered by the Justice N. Kumar the learned Judge agreed with the reasoning of the Chief Justice on all contentions except the third contention regarding the interpretation to be placed on Paragraph 2(1)(a) of the Tenth Schedule. Paragraph 33 of the judgment of the High Court reads thus;

“33. I have gone through the judgment prepared by the Hon’ble Chief Justice, wherein His Lordship has set out the facts of the case, referred to the material documents and recorded His Lordship’s conclusions on all the contentions which arise for consideration in these Writ Petitions. Except on third contention, regarding the interpretation to be placed on Paragraph 2(1)(a) of the Tenth Schedule, I am in agreement with the reasoning dealing with the rest of the contentions.“ On the contention regarding the interpretation to be placed on Paragraph 2(1)(a) of the Tenth Schedule, Justice N. Kumar concluded that, in a parliamentary democracy the mandate to rule the State is given not to any individual but to a political party. The anti-defection law was enacted to prevent floor crossing and destabilizing the Government which is duly elected for a term. When a Member of a House expressed his no- confidence in the leader of a Legislature Party and if he happened to be the Chief Minister who is heading the Council of Ministers and had written to the Governor in that regard, such act by itself would not amount to an act of floor crossing. An act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up of the membership of the political party. His act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to a voluntary act of giving up the membership of the political party. Paragraphs 60 to 63 of the judgment delivered by Justice N. Kumar read thus;

“60. Therefore, from the aforesaid decisions it is clear that an act of expressing no confidence in one of the leader of the political or in the leader of the legislative party do not amount to his voluntarily giving up his membership of the political party. His act of expressing no confidence in the Government formed by the party with a particular leader as the Chief Minister would also not amount to a voluntary act of giving up the membership of the political party. Deserting the leader, deserting the Government, is not synonyms with deserting the party. If a Minister resigns from the ministry it does not amount to defection. What constitutes defection is deserting the party. Parliament in its wisdom, has consciously used the word “Political Party” in paragraph 2, after clearly defining the meaning of “Political Party”. There is no ambiguity. Therefore, there is no scope for interpretation of the word “Political Party” used in the paragraph.

61. In order to attract disqualification under paragraph 2 (1)(a), a member of a House belonging to any political party has to voluntarily give up his membership of such political party on his own volition join another political party. It should be a conscious act. There should be an intention to severe his connection with the political party which set him up as a candidate for election as such member. He should lose his membership of such political party. The giving up of the membership of the political party may happen in several ways. It need not be in writing. It may be oral. Even by conduct and circumstances, the intention could be gathered. But it should be unequivocal and voluntary. One such mode well understood is by way of tendering a resignation letter. But, that is not the only mode recognised. If a member of his own volition joins another political party, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged. Yet another instance is when he forms a new political party and claims to be a leader or member of that party, thereby he abandons the original political party. Being a member of a House belonging to a political party, contests for election as an independent or as a candidate of another political party, he ceases to be a member of the original political party. He joins hands with leader of the other political party and extends his support in writing, in forming the Government under his leadership before the Governor, it amounts to his voluntarily giving up membership of the original political party. These instances are only illustrative and not exhaustive. In order to attract the disqualification under this provision, a member of the House after the election changes his affiliation and leaves the political party which had set him up as a candidate at the election, then it amounts to giving up his membership of the legislature. The said giving up of membership should be established by positive, reliable and unequivocal evidence. The question of fact that a Member has voluntarily given up the membership of his original political party for all intent and purpose though not formal so as to incur disqualification provided in paragraph 2(1)(a) is to be determined on appreciation of the material on record.

62. Dissent is not defection. Tenth Schedule recognizes dissent but prohibits defection. Both these words have definite connotation in law. The distinction between what is constitutionally permissible and what is outside it, is marked by a hazy gray line. There is no single litmus test of constitutionally. All distinctions of law – even constitutional law – are, in the ultimate analysis, “matter of degree”. It is only when dissent becomes defection the Tenth Schedule is attracted. At what point of time the dissent becomes defection is also provided in the Tenth Schedule. When dividing line between dissent and defection is very narrow and thin, and Tenth Schedule provides for such variant, keeping in mind the object with which the Tenth Schedule is enacted and other constitutional rights, it is pre-eminently an area where Judges should defer to legislative perception, and give literal meaning to the words used in the Tenth Schedule, without placing liberal interpretation of those provisions. It is to be borne in mind the serious consequences of upholding disqualification. The Member of the House would be disqualified for being a Member of the House for the remaining period. It is penal in nature. It also results in civil consequences. It is also to be noticed that the object of Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundation of our democracy. After the Tenth Schedule, the defector cannot hold any office at all, on the contrary he loses his membership of the House. The object with which the Tenth Schedule is enacted is achieved. Therefore, the Tenth Schedule should not be allowed to be misused, to suppress honest dissent, and any interpretation the Courts place on this provision, should not aid such mischief.

63. Therefore, either expressing want of confidence in the Chief Minister, or withdrawing their support which was earlier given to him or demanding change of leadership of the legislature party or threatening to vote against him on the floor of the House or complaining to the Governor that the Government of the State cannot be carried on in accordance with the provisions of the Constitution or the Governor asking the Chief Minister to prove his majority on the floor of the House, do not amount to unconstitutional act and the person who triggered this action cannot be called a defector. These actions do not constitute an act of defection nor on that account a member of the House can be disqualified under paragraph 2 of the Tenth Schedule. These acts are strictly within the four corners of the Constitution, and cannot constitute disqualification under Paragraph 2 of the Tenth Schedule.“ On account of difference of opinion the Writ Petitions were referred to Justice V.G. Sabhahit, who agreed with the view of the Chief Justice. As a result, the majority view was that the Speaker was justified in holding that 13 MLAs had voluntarily given up their membership in BJP by their conduct. The matter was taken up to the Apex Court. The Apex Court allowed the Civil Appeals filed by the MLAs. In paragraphs 40 to 53 of the judgment, the Apex Court referred to the minority view of Justice N. Kumar that, anti-defection law was enacted to prevent floor crossing and destabilizing the Government which is duly elected for a term. When a Member of a House expressed his no- confidence in the leader of a Legislature Party and if he happened to be the Chief Minister who is heading the Council of Ministers and had written to the Governor in that regard, such act by itself would not amount to an act of floor crossing. An act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up of the membership of the political party. Paragraphs 48 and 49 of the judgment of the Apex Court read thus;

“48. The learned Judge observed that the two grounds set out in Para 2 of the Tenth Schedule to the Constitution are mutually exclusive and operate in two different fields. While Para 2(1)(a) deals with the Member who voluntarily walks out of the party, Para 2(1)(b) deals with the Member who remains in the party but acts in a manner which is contrary to the directions of the party. The learned Judge, however, went on to observe that if a Member voluntarily gives up his membership from the party, then Para 2(1)(b) is no longer attracted. In either event, it is the political party which is aggrieved by such conduct. However, it was left to the party to condone the conduct contemplated in Para 2(1)(b), but such conduct would have to be condoned within 15 days from the date of such voting or abstention.

49. Having dealt with the various decisions referred to hereinabove, the learned Judge came to the conclusion that it was clear that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, his act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to a voluntary act of giving up the membership of the political party.“ The Apex Court observed that, the view taken by the Speaker that the Members of the House had become subject to disqualification under Paragraph 2(1)(a) of the Tenth Schedule has to be tested in relation to the action of the concerned Members and it has to be seen whether on account of such action a presumption could have been drawn that they had voluntarily given up their membership of the BJP, thereby attracting the provisions of Paragraph 2(1)(a) of the Tenth Schedule. The Apex Court held that, the conclusion arrived at by the Speaker does not find support from the contents of the letter of 6th October, 2010, so as to empower the Speaker to take such a drastic step as to remove the Appellants from the membership of the House. Paragraphs 118 to 122 of the judgment of the Apex Court read thus;

“118. In the instant case, the Appellants had in writing informed the Governor on 6-10-2010, that having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa, they had chosen to withdraw support to the Government headed by Shri B.S. Yeddyurappa and had requested the Speaker to intervene and institute the constitutional process as constitutional head of the State. The said stand was re-emphasised in their replies to the show-cause notices submitted by the Appellants on 9-10-2010, wherein they had, inter alia, denied that their conduct had attracted the vice of "defection" within the scope of Para 2(1)(a) of the Tenth Schedule.

119. In their said replies the appellants had categorically indicated that nowhere in the letter of 6-10-2010, had they indicated that they would not continue as Members of the Legislature Party of BJP. On the other hand, they had reiterated that they would continue to support BJP and any Government formed by BJP headed by any leader, other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. They also reiterated that they would continue to support any Government headed by a clean and efficient person who could provide good governance to the people of Karnataka according to the Constitution of India and that it was only to save the party and Government and to ensure that the State was rid of a corrupt Chief Minister, that the letter had been submitted to the Governor on 6- 10-2010.

120. At this point let us consider the contents of the letter dated 6-10-2010, written by the Appellants to the Governor, which has been reproduced hereinbefore. The letter clearly indicates that the author thereof who had been elected as a MLA on a Bharatiya Janata Party ticket, having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa on account of widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery, was convinced that a situation had arisen in which the governance of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people.

121. The letter further indicates that it was in the interest of the State and the people of Karnataka that the author was expressing his lack of confidence in the Government headed by Shri Yeddyurappa and that he was, accordingly, withdrawing his support to the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and institute the constitutional process as constitutional head of the State.

122. Although, Mr. Sorabjee was at pains to point out that the language used in the letter was similar to the language used in Article 356 of the Constitution, which, according to him, was an invitation to the Governor to take action in accordance with the said Article, the same is not as explicit as Mr. Sorabjee would have us believe. The "constitutional process", as hinted at in the said letter did not necessarily mean the constitutional process of proclamation of President's rule, but could also mean the process of removal of the Chief Minister through constitutional means. On account thereof, the Bharatiya Janata Party was not necessarily deprived of a further opportunity of forming a Government after a change in the leadership of the legislature party. In fact, the same is evident from the reply given by the Appellants on 9-10-2010, in reply to the show-cause notices issued to them, in which they had re- emphasised their position that they not only continued to be members of the Bharatiya Janata Party, but would also support any Government formed by the Bharatiya Janata Party headed by any leader, other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. The conclusion arrived at by the Speaker does not find support from the contents of the said letter of 6-10-2010, so as to empower the Speaker to take such a drastic step as to remove the Appellants from the membership of the House.”

On facts, the Apex Court found that, the Disqualification Application filed by Shri. Yeddyurappa contained only bald allegations, which were not corroborated by any direct evidence. The application did not even mention the provision under which the same had been made. By allowing Shri. K.S. Eswarappa, who was not even a party to the proceedings, and Shri. M.P. Renukacharya and Shri Narasimha Nayak to file their respective affidavits, the short-comings in the Disqualification Application were allowed to be made up. The Speaker, however, relied on the same to ultimately declare that the appellants stood disqualified from the membership of the House, without even serving copies of the same on the Appellants, but on their learned Advocates, just before the hearing was to be conducted. In such circumstances, the Apex Court held that the conduct of the proceedings by the Speaker and the decision given by the Speaker on the basis thereof did not meet even the parameters laid down in Jagjit Singh v. State of Haryana (2006 (11) SCC 1). The order of the Speaker dated 10/10/2010, disqualifying the Appellants from the membership of the House under paragraph 2 (1)(a) of the Tenth Schedule to the Constitution was set aside by the Apex Court along with the majority judgment delivered in Writ Petition (Civil) No.32660-32670/2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Chief Justice, upholding the decision of the Speaker on the Disqualification Application No.1/2010 filed by Shri. Yeddyurappa. Consequently, the Apex Court dismissed the Disqualification Application filed by Shri. Yeddyurappa. Paragraph 157 of the judgment reads thus;

“157. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1)(a) of the Tenth Schedule to the Constitution is set aside along with the majority judgment delivered in Writ Petition (Civil) No.32660-32670 of 2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa. Consequently, the Disqualification Application filed by Shri B.S. Yeddyurappa is dismissed.“

31. Now, we shall revert to the facts of the present case.

As already noticed, the common allegations in Exhibits P3 to P5 Original Petitions filed before State Election Commission are that, respondents 1 to 3 with the support of Kerala Congress moved a no-confidence motion against the appellant to oust him from the post of the President of Manimala Grama Panchayat. This was done without the permission of the Parliamentary Party or the Political Party. Respondents 1 to 3 in gross defiance of the direction issued by the Parliamentary Party moved and voted in favour of the no-confidence motion and out seated the President of their own Party. Consequently Congress lost power in the Panchayat. Per contra, respondents 1 to 3 contended that, while holding the post of the President of Manimala Grama Panchayat the appellant acted against the interest of the people of the Grama Panchayat, Congress Parliamentary Party and UDF. Therefore, both the Parliamentary Party and UDF directed him to resign from that post. But he disobeyed the said decision and continued as President. Hence, the Parliamentary Party and UDF decided to move a no-confidence motion against him, which was signed by respondents 1 to 3, who are members of Congress and 5 other members of UDF. All UDF members and Congress members, except the appellant and one Valsala, voted in favour of the no-confidence motion. Respondents 1 to 3 neither supported LDF nor received the support of LDF. UDF is still in power in the Panchayat.

32. One of the findings of the State Election Commission in Exhibit P10 order is that, respondents 1 to 3 moved the no- confidence motion against their own party without the knowledge and consent of Congress Party or DCC President and the 1st respondent had also contested for the post of President against the official candidate of Congress Party and the 2nd and 3rd respondents supported him in that election. The above conduct of respondents 1 to 3 would abundantly prove that they have voluntarily given up their membership of the party. On the other issue of violation of whip, the Election Commission held that, going by Rule 4(1)(i) of the Rules, as amended by S.R.O.No.913/05, the party whip has to be read by the person elected by the Parliamentary Party by majority and on his refusal it has to be read by another member in the meeting of the elected members of that party. Admittedly the above procedure has not been followed in these cases. Even though, the appellant was elected as the Whip he had only given direction and did not read the whip given by the DCC President by convening the Parliamentary Party. So there is non-compliance of the above Rule and as such the second limb of Section 3(1)(a) in relation to violation of whip is not attracted in these cases.

33. As far as the finding of the State Election Commission that, after the no-confidence motion, the 1st respondent contested for the post of President against the official candidate of Congress Party and the 2nd and 3rd respondents supported him in that election is concerned, there is total lack of pleadings in this regard in Exhibits P3 to P5 Original Petitions. If that be so, no amount of evidence can be looked into upon a plea which was never put forward in Exhibits P3 to P5 Original Petitions. In our view, the finding of the Election Commission that, after the no- confidence motion, 1st respondent contested for the post of President against the official candidate of Congress Party and 2nd and 3rd respondents supported him in that election, which would prove that respondents 1 to 3 have voluntarily given up their membership of the party cannot be sustained in the light of the pleadings in Exhibits P3 to P5 Original Petitions. Our view in this regard finds support from the judgment in Chinnamma Varghese's case (supra) in which a Division Bench of this Court after a survey of the case law on the point and on an analysis of the provisions contained in the Act held that, incurring of the disqualification under any one of the contingencies depends upon the existence of a definite set of facts, which are required to be specifically pleaded before they are sought to be proved to establish the allegation of disqualification under the Act. Further, it is only the pleading in a legal proceeding that puts the opposite parties on notice of what is sought to be asserted against them and what are the rights or obligations sought to be enforced against them.

34. We shall now deal with the finding of the State Election Commission that, respondents 1 to 3 moved the no-confidence motion against their own party without the knowledge and consent of Congress Party or DCC President and their above conduct would abundantly prove that they have voluntarily given up their membership of the party. As already noticed, the main allegation in Exhibits P3 to P5 Original Petitions is that, respondents 1 to 3 with the support of Kerala Congress moved a no-confidence motion against the appellant and ousted him from the post of the President of Manimala Grama Panchayat, which was done without the permission of the Parliamentary Party or the Political Party. By the aforesaid act, they have voluntarily abandoned or given up their membership in Congress Party and moving with the support of others against the will of UDF in the Panchayat they have committed defection. The fact that respondents 1 to 3 have supported the no-confidence motion against the appellant is not in dispute. This is further born out from Exhibits P25, P26 and P27 ballot papers issued to respondents 1 to 3. The total number of elected members in Manimala Grama Panchayat is 15, out of which UDF secured 11 seats. The no-confidence motion, which is the subject matter in the present case, is one moved by respondents 1 to 3 along with 5 other members of UDF. When the said motion was tabled for discussion, respondents 1 to 3 along with 6 other members of UDF supported the same and the appellant was ousted from the post of the President of Manimala Grama Panchayat. Therefore, the no-confidence motion was supported by 9 out of 11 members of UDF and the appellant and one Valsala voted against the said motion. In Exhibits P3 to P5 Original Petitions the appellant has no case that the no-confidence motion moved by respondents 1 to 3 was supported by any member of the Opposition Party. Admittedly there was no destabilisation of power in the Grama Panchayat and UDF continued in power. Going by the pleadings in Exhibits P3 to P5 Original Petitions and Exhibit P6 objection, the seat sharing arrangement within the coalition, i.e., between INC and Kerala Congress (M), which allows the members within the coalition to hold the post of the President of the Grama Panchayat, is also not in dispute.

35. It has come out in evidence that respondents 1 to 3 met the representatives of their Political Party on the previous day and had discussions on the no-confidence motion. The evidence of DCC Vice-President as RW7 and that of DCC General Secretary as RW8 would prove that there was such a discussion in the DCC office about removal of the appellant from the post of the President of Manimala Grama Panchayat and the same was accepted in principle. But, the Election Commission, without any valid reasons brushed aside the oral as well as documentary evidence adduced in this regard and accepted the version of DCC President, who was examined as PW2. As rightly noticed by the learned Single Judge, other than the evidence of PW2 and Exhibits P5, P9 and P20 letters issued by him, there is no material to conclude the decision of INC on the no-confidence motion proposed against the appellant. Exhibits P5, P9 and P20 letters issued by PW2 does not amount to a whip. There is also no material on record to prove that Congress members are bound, as per the bye laws of that political party, to obey the instructions of DCC President. The Election Commission has already found in Exhibit P10 order that the second limb of Section 3(1)(a) of the Act in relation violation of whip is not attracted in the case of respondents 1 to 3. Though, even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up membership of the political party, to persuade the Election Commission or this Court to draw such an inference there must be concrete proof that the member has acted in defiance of any valid directions of that political party. As the finding of the Election Commission in Exhibit P10 that respondents 1 to 3 moved the no-confidence motion against their own party without the knowledge and consent of the Congress Party or the DCC President is not based on any any reliable materials on record, the learned Single Judge is right in his conclusion that the Election Commission proceeded to consider irrelevant materials to draw such an inference.

36. In paragraphs 22 to 28 of this judgment, we have dealt with in detail, the decisions relied by the learned Senior Counsel for the appellant. In Varghese's case (supra) the writ petitioners who are UDF members supported the no-confidence motion moved by the rival political group LDF. In this case, there was floor-crossing and political disloyalty and the writ petitioner was elected as the Chairperson of Adoor Municipality with the support of rival political party and the ruling political group, i.e., UDF lost power. In Dharma Mani's case (supra) the writ petitioners who are UDF members moved a no-confidence motion against the President and Vice-President of Parassala Block Panchayat along with 5 members of the rival political group LDF and the writ petitioner in W.P.(C)No.337/2009 was elected as the President of Block Panchayat with the support of LDF. In this case, there was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., UDF lost power. In Nazeerkhan's case (supra) the writ petitioner who is a UDF member contested to the post of Vice -President against the official candidate of his own party and was elected on the basis of the votes cast in his favour enbloc by the rival political group LDF. In this case, there was floor-crossing and political disloyalty. In Shiney Augustine's case (supra) the writ petitioner who is a LDF member and the President of Vamanapuram Grama Panchayat moved and supported a no-confidence motion against the Vice- President of the Grama Panchayat, joining hands with the members of the rival political group UDF. In this case, there was floor-crossing and political disloyalty. The learned Single Judge upheld the order of the Election Commission disqualifying the writ petitioner on the ground that she had voluntarily given up her membership of the political party. In appeal, the Division Bench of this Court, relying on the judgment in Chinnamma Varghese's case (supra) held that, in the absence of proper pleadings and evidence on record the above said finding of the Election Commission cannot be sustained. In Chinnamma Varghese's case (supra) the appellant, though contested the election as an independent candidate, was admittedly supported by the political party CPI (M), which in turn had a political arrangement with CPI. The rival political group UDF moved a no- confidence motion. The appellant not only signed the no- confidence motion but also voted in favour of said motion, which resulted in the ouster of the President of the Panchayat who belonged to LDF. In this case, there was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., LDF lost power. The order passed by the State Election Commission disqualifying the appellant was upheld by the learned Single Judge. In appeal, the Division Bench of this Court set aside the judgment of the learned Single Judge and held that, it is only the specific overt act of voting or abstaining from voting contrary to any written directions issued by the political party on a no-confidence motion that tantamounts to defection. In Muhammedkunhi's case (supra) the writ petitioners who belong to IUML signed a no-confidence motion moved by the rival political group BJP and voted in favour of that motion against the President of Meenja Grama Panchayat along with 4 members of BJP and 2 members of CPI (M), who belong to rival political parties, and the motion was adopted. Another motion was moved against the Vice-President, which was also adopted. There was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., UDF lost power. Similarly, in Celene Joy's case (supra) the writ petitioners contested in the election to Pampadumpara Grama Panchayat in the ticket of Congress (I) Party. In the election to the post of the President, the writ petitioner in W.P.(C)No.30341/2011 contested against the official candidate of his own party and was elected as the President of the Grama Panchayat. An independent member, who won election by the support of BJP, a rival political party, also voted in his favour. The Commission found that, as borne out by Exhibits X1(a) minutes of the Parliamentary Party, the party members sought the opinion of the Congress (I) Party about the candidate to be supported and Exhibit X1(b) minutes reflect that the decision of the Congress (I) Party to support Sreemandiram Sasikumar was intimated to all party members. Therefore, from the conduct of the writ petitioner that they did not vote in favour of the said candidate an inference can be drawn that they have voluntarily given up membership of the political party. Added to this, the writ petitioners were supported by an independent candidate who won election by the support of Bharatiya Janata Party, which is not a constituent of United Democratic Front. In this case also there was floor-crossing and political disloyalty. Therefore, as rightly contended by the learned counsel for respondents 1 to 3, the principle laid down in the aforesaid judgments, which are on entirely different factual matrix, cannot be relied on to arrive at a finding that respondents 1 to 3 have voluntarily given up membership of their political party.

37. As held by this Court in Chinnamma Varghese's case (supra), incurring of the disqualification under any one of the contingencies under Section 3 of the Act depends upon the existence of a definite set of facts, which are required to be specifically pleaded. As already noticed, the common allegation in Exhibits P3 to P5 Original Petitions is that, respondents 1 to 3 with the support of Kerala Congress moved a no-confidence motion against the appellant to oust him from the post of the President of Manimala Grama Panchayat, which was done without the permission of the Parliamentary Party or the Political Party. It is not in dispute that, the no-confidence motion, which is the subject matter in the present case, is one moved by respondents 1 to 3 along with 5 other members of UDF against the appellant, who was holding the post of the President of Manimala Grama Panchayat. When it was tabled for discussion, respondents 1 to 3 along with 6 other members of UDF (i.e., 9 out of 11 members of UDF) supported the same and the appellant was ousted from the post of the President. In Exhibits P3 to P5 Original Petitions the appellant has no case that, the said no-confidence motion was either signed or supported by any member of the rival political party or that subsequent to the no-confidence motion the 1st respondent contested for the post of the President of Manimala Grama Panchayat against the official candidate of Congress Party. Further, there was no destabilisation of power in the Grama Panchayat after the no-confidence motion and UDF continued in power. There is neither floor-crossing nor shifting of political loyalty to any rival political party or coalition. On the other hand, the specific case of respondents 1 to 3 is that, the appellant while holding the post of the President of Manimala Grama Panchayat acted against the interest of the people of the Grama Panchayat, Congress Parliamentary Party and UDF. He disobeyed the direction of the party and coalition to resign from that post. Hence, the Parliamentary Party and UDF decided to move a no- confidence motion against him, which was signed by respondents 1 to 3 and 5 other members of UDF. There is also no material on record to prove that Congress members are bound, as per the bye laws of that political party, to obey the instructions of DCC President. Moreover, it has come out in evidence that respondents 1 to 3 met the representatives of their Political Party on the previous day and had discussions on the no-confidence motion. The evidence of the DCC officials as RW7 and RW8 would prove that there was a discussion in the DCC office about removal of the appellant from the post of the President of Manimala Grama Panchayat and the same was accepted in principle.

38. What constitute defection is deserting the political party and not deserting the leader of that political party. An act of a member expressing no confidence in the leader of the political party would not amount to voluntarily giving up of his membership of that political party. Our view in this regard finds support from paragraphs 118 to 122 of the judgment of the Apex Court in B.S.Yeddyurappa's case (supra) which we have already quoted in paragraph 30 of this judgment. When a member expressed his no-confidence in the leader of the political party such act by itself would not amount to an act of floor crossing or political disloyalty.

39. The provisions under the Tenth Schedule of the Constitution and that under the Kerala Local Authorities (Prohibition of Defection) Act are intended to curb unprincipled and unethical political defection. In order to draw an inference that respondents 1 to 3 have voluntarily given up membership of the political party, there must be concrete proof that they have acted in defiance of any valid directions of the political party. The said giving up of membership should be established by positive, reliable and unequivocal evidence. The fact that a member has voluntarily given up membership of the political party for all intent and purpose so as to incur disqualification under Section 3 of the Act is to be determined on appreciation of materials on record. In the absence of any such proof, the finding in Exhibit P10 order that respondents 1 to 3 moved the no-confidence motion against their own party without the knowledge and consent of the Congress Party or the DCC President and their above conduct would amount to voluntarily giving up their membership of the party, is per se arbitrary and perverse. Therefore, in our view, the learned Single Judge rightly set aside Exhibit P10 order passed by the State Election Commission.

We find absolutely no grounds to interfere with the judgment of the learned Single Judge. In the result, this Writ Appeal is dismissed. No order as to costs.

Sd/-

K.T.SANKARAN, JUDGE dsn Sd/-

ANIL K.NARENDRAN, JUDGE