N. Nagaresh, J.

1. The petitioner is a candidate, who is elected from Ward No. 6 of the Keerampara Grama Panchayat in Ernakulam District, in the elections to the Local Self Government Institutions held in Kerala in December, 2020. The petitioner seeks to quash Ext. P7 and to declare that the petitioner is entitled to continue as an elected Member of the Keerampara Grama Panchayat, irrespective of issuance of Ext. P7 order.

2. The petitioner states that she was elected from Ward No. 6 of Keerampara Grama Panchayat as an independent candidate. As per Rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (hereinafter referred to as "the Rules, 2000", for brevity), a Member is required to file a Declaration. According to the petitioner, the Rule permits an independent Member to file a declaration that he/she received support from a political party.

3. The petitioner submits that after the elections, she filed Ext. P1 declaration dated 21.12.2020 to the effect that she received support from the Communist Party of India (Marxist) and the coalition including the Communist Party of India (Marxist) (CPI(M)) and the Communist Party of India (CPI). The petitioner would urge that an independent candidate, who contested elections otherwise than with the support of a political party, can also declare that he/she received support of a political party. This will not constitute defection as the same is a statutory requirement. Ext. P1 declaration filed by the petitioner does not in any manner indicate that the petitioner has joined CPI(M) or CPI.

4. A Member of the Panchayat belonging to the Indian National Congress filed Ext. P3 petition before the Kerala State Election Commission under Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 alleging that though the petitioner is an independent Member, she thereafter has joined a political party/coalition and thereby has acquired disqualification.

5. The petitioner filed Ext. P4 preliminary objections to Ext. P3 petition pointing out that even if all the allegations made in Ext. P3 are accepted, the petition is not maintainable. The petitioner also filed Ext. P6 objection. The State Election Commission, without any material on record and ignoring the stringent principles in election law, allowed Ext. P3 petition as per Ext. P7 order dated 02.08.2022 concluding that the petitioner has joined a coalition/party after assuming as a Member in the Local Authority.

6. The learned Senior Counsel assisted by the counsel for the petitioner argued that an independent candidate who contested the election otherwise than with the support of a political party, can file a declaration that he/she has received support from a political party and therefore to disqualify such an independent candidate, there must be admissible proof to establish that the candidate has joined a political party/coalition subsequently. In the case of the petitioner, there is absolute absence of evidence/proof to conclude that the petitioner has joined any political party or coalition.

7. Relying on the judgment of the Apex Court in Sampada Yogesh Wagdhare v. State of Maharashtra and others (2019) 5 SCC 682] [LQ/SC/2019/734] , the Senior Counsel urged that the principle evolved is that the electorate is denied representation by disqualification and therefore, the standard of proof is very high and allegations must be specific and proved beyond reasonable doubt.

8. The learned counsel pointed out that in Chinnamma Varghese v. State Election Commission 2010 (3) KLT 426 [LQ/KerHC/2010/907] ], this Court has held that incurring of disqualification 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.

9. The judgments in Joseph K.M. v. Babychan Mulangasseri and others 2015 (1) KHC 111 (DB)] and Sivadasan K. v. Kerala State Election Commission and another 2020 (6) KHC 408] were also relied on, to urge the proposition of law.

10. The allegation against the petitioner is that she joined the CPI(M)/LDF. There is no evidence to prove the joining. In fact, there is no sufficient pleading either. The Election Commission therefore should have called for specific evidence regarding the alleged joining. The findings of the Election Commission is therefore unsustainable, urged the Senior Counsel.

11. Standing Counsel entered appearance on behalf of the 1st respondent-State Election Commission and resisted the writ petition. It was submitted on behalf of the 1st respondent that if an independent Member not belonging to any political party or coalition joins any political party or coalition, he/she shall be disqualified for being Member of that local authority in view of Section 3(1)(c). Both the Fronts which contested the election on political lines had fielded their own candidates from Ward No. 6. The petitioner contested as an independent, as admitted by the petitioner.

12. In the mandatory declaration filed under Rule 3 of the Rules, 2000, the petitioner claimed that she contested as independent with the support of the LDF. The petitioner also admitted that in the election to the post of Panchayat President, she voted in favour of LDF nominee and later the LDF Members proposed the name of the petitioner and the petitioner was elected as Vice President.

13. The Standing Counsel pointed out that unlike the provisions contained in the 10th Schedule to the Constitution of India, there is a statutory rule, Rule 3(2)(a) in the Rules, 2020, which provides as to when a Member is "to be treated as a Member" of any political party. A declaration given by a Member under Rule 3 creates a deeming fiction.

14. I have heard the learned Senior Counsel assisted by the counsel for the petitioner and the learned Standing Counsel for the 1st respondent-State Election Commission.

15. The pleadings in the case would show that the writ petitioner contested as an independent candidate in Ward No. 6 of Keerampara Panchayat. Both the political coalitions, LDF and UDF, had their own candidates who contested from Ward No. 6. The petitioner in her mandatory declaration filed under Rule 3 of the Rules, 2000 has stated that she contested as an independent with the support of LDF. The Register maintained under Rule 3 also indicated that the petitioner belongs to CPI(M)/LDF. It is an admitted fact that the petitioner has voted in favour of LDF candidates in the election to the post of Panchayat President. It is not disputed that the LDF proposed the name of the petitioner to the post of Vice President and the petitioner was elected as Vice President with LDF support.

16. The argument of the petitioner is that an independent candidate, who contested the election otherwise than with the support of a political party, can file a declaration that he/she has received support from a political party and therefore to disqualify such an independent candidate, there must be admissible proof to establish that the candidate has joined a political party/coalition subsequently. There is no proof of the petitioner joining LDF or CPI(M) before the State Election Commission to justify Ext. P7 order of disqualification, contends the petitioner.

17. Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 reads as follows:

"3. Disqualification on ground 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 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 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 a voting on a no-confidence motion against any one of them except a member of a Standing Committee;

(b) if an independent member belong to any coalition with draws 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 its 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 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 this 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."

Therefore, if an independent Member not belonging to any political party or coalition joins any political party or coalition, he/she is liable to be disqualified for being a Member of that local authority.

18. Rule 3 of the Rules, 2000 reads as follows:

"3. To maintain register to record the party connections of members - (1) The Officer authorised for the purpose by the State Election Commission shall record in the Register in Form 1 appended to these rules, the details as to whether a member duly elected to a local authority is one who belongs to a political party or coalition or is having the support of any one of them or is an independent member not belong to any political party or coalition.

(2) If a member elected to a local authority is,-

(a) a person who contested election as a candidate of a Political party or as a candidate having the support of political party shall file a declaration to that effect before the Officer authorised under sub-rule (1) and accordingly that member shall be treated as a member of that political party or as a member with the support of that political party, as the case may be;

(b) an independent who contested election as a candidate of a coalition or as a candidate with the support of the coalition, shall file a declaration to that effect before the Officer authorised under sub-rule (1) and accordingly that member shall be treated as a member of that coalition or as a member with the support of that coalition; as the case may be;

(c) an independent who contested election otherwise than as the candidate of a political party or a coalition or as the candidate with the support of the same shall file a declaration to that effect before the Officer authorised under sub-rule (1) and accordingly that member shall be treated as an independent member and;

a register under sub-rule (1) shall be maintained recording therein the respective facts.

(3) The declaration of the member under sub-rule (2) shall be in Form 2 appended to these rules and shall be filed on the same day he assumes Office as member after the swearing:

Provided that a person who has been a member of a Local authority on the date of publication of these rules in the Gazette shall, in accordance with the position as on the date on which he was elected a member, file, before the expiry of the date fixed by order by the State Election Commission, the declaration under sub-rule (2) and the details in respect of the member shall be recorded in the register accordingly.

Explanation - Declaration shall be filed under these rules even if a member has filed declaration under rule 3 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 1998 and the details in respect of the member have been recorded in the register maintained under the said rules.

(4) The register maintained under sub-rule (1) and the declarations that the members submit for making entries therein shall be kept in the safe custody of the Officer authorised under sub-rule (1) at his own responsibility."

19. The Rule provides that if a Member elected to a local authority is a person who contested election as a candidate of a political party or coalition, or as a candidate having the support of a political party or coalition, he/she shall file a declaration to that effect and thereupon such Member shall be treated as a Member of that political party or coalition, or as a Member with support of that political party or coalition, as the case may be.

20. Rule 3(1)(c) mandates that if a Member elected to a local authority is an independent who contested the election otherwise than as a candidate of a political party or a coalition or as the candidate with the support of the same shall file a declaration to that effect. In the case of the petitioner, she has contested as an independent candidate from Ward No. 6 wherein the political coalitions LDF and UDF had their own candidates. Therefore, the contention of the petitioner that she has received support of a political party which is a constituent of one of those coalitions, cannot be accepted.

21. Rule 3(2)(a) provides that when a candidate who contested election as a candidate of a political party or as candidate having the support of a political party files a declaration to that effect, that Member will be treated as a Member of that political party. Thus, when a candidate files such a declaration, there is a deeming fiction that such Member will be treated as Member of that political party or as a Member with the support of that political party, as the case may be. The reliance placed by the petitioner on the judgment of the Apex Court in D. Sudhakar and others v. D.N. Jeevaraju and others will not apply to the facts of the case in view of the deeming provision contained in Rule 3 of the Rules, 2000. If the argument of the petitioner in the writ petition is that she has contested the election with the support of a political party, the deeming provision in Rule 3(2)(a) will apply.

22. The materials available from the records of the case would show that the petitioner contested the election from Ward No. 6 as an independent candidate, where other political coalitions including LDF had put up their own candidates. The petitioner has thereafter aligned with a political front and has been elected as Vice President of the Panchayat. The petitioner is an independent candidate not belonging to any political party or coalition. By filing the declaration in question, the petitioner should be deemed to have joined a political party/coalition. Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 will therefore be attracted.

For the afore reasons, I find no illegality in Ext. P7 order of the State Election Commission. The writ petition fails and it is therefore dismissed.