Muralee Krishna, J.

1. The 3rd respondent in W.P.(C)No.19905 of 2023 filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 21.10.2025 passed by the learned Single Judge in that writ petition.

2. The 1st respondent-writ petitioner filed W.P.(C)No.19905 of 2023 under Article 226 of the Constitution of India, seeking the following reliefs:

               “i) to call for the records which lead to the issuance of Ext. P4 and to issue writ in the nature of certiorari or any other appropriate writ, order or direction quashing the same;

               ii) to declare that petitioner is not disqualified from contesting elections in local authorities as provided under Sec.4 of the Kerala Local Authorities (Prohibition of Defection) Act 1999”

3. Going by the averments in the writ petition, the 1st respondent is an agriculturist actively involved in social activities and was a member of Thidanadu Grama Panchayath in Meenachil Taluk of Kottayam District. He was elected, pursuant to the election conducted to the local bodies in November 2015 from Ward No.4 of Thidanadu Grama Panchayath as a candidate of the political party Kerala Congress (Mani), which had coalition with United Democratic Front (‘UDF’ for short). After the election, the appellant was elected as the President of the Grama Panchayath. A no-confidence motion was moved against the appellant on 15.05.2018. The motion was signed by 6 out of 14 members of the Grama Panchayath. The no-confidence motion was taken up for discussion, and 8 members who were present in the meeting voted in favour, and the appellant was removed from the post of President of Grama panchayath as seen from Ext.P1 minutes of the meeting dated 15.05.2018. Alleging that the 1st respondent and another member violated the whip issued by district-level leaders of respective political parties, the appellant approached the 3rd respondent, Kerala State Election Commission (‘Election Commission' for short), by filing Ext.P2 - O.P. No. 53 of 2018 against the 1st respondent and O.P.No.54 of 2018 against the other member. In the O.P., the 1st respondent entered appearance and filed Ext.P3 objections, disputing the contentions and specifically stating that there was no whip issued as contended.

               3.1. According to the 1st respondent, during evidence, the appellant could not prove that there was service of whip on the 1st respondent. There was no publishing or reading of the same in the committee convened for discussing the no-confidence motion. According to the 1st respondent, without taking into consideration any of the issues involved in the case, the 3rd respondent allowed the O.P. through Ext.P4 order and declared that the 1st respondent is disqualified for contesting as a candidate in any election to any local authority for a period of six years from the date of the order impugned. It is held in Ext.P4 that there was service of whip as required under law. Hence, challenging Ext.P4, the 1st respondent preferred the writ petition.

4. After hearing both sides and on appreciation of the materials on record, the learned Single judge by the impugned judgment dated 21.10.2025 disposed of the writ petition. Paragraphs 6, 7, and 9 and the operative portion of the said judgment, which are relevant while considering the contentions of the parties in this writ appeal, read thus:

               “6. The short point raised by the petitioner is that the impugned order was passed by the Election Commissioner mainly for the reason that the notice of whip was served to the petitioner. According to the petitioner, the notice was not served, and there is no evidence to show that the petitioner was aware of the same. The counsel also submitted that there is no whip. The learned counsel appearing for the party respondents supported the impugned order and submitted that the address to which the whip is issued is the address furnished by the petitioner, and the same is admitted by the petitioner also. The learned counsel for the petitioner also submitted that the Commissioner allowed the original petition simply for the reason that the whip had already been informed to the petitioner.

               7. The petitioner has a case that there is no whip, and that point is not considered. This court perused the impugned order. There is no such finding. When the petitioner has got a case that, there is no whip and such a contention is raised, the commission ought to have considered that question also. In such circumstances, without expressing anything on merit in the finding of the Commissioner regarding the delivery and validity of the whip, the impugned order can be set aside.

xxx xxx xxx xxx

               9. Keeping in mind the above principles, this Court perused the impugned order. I am of the considered opinion that the Election Commissioner has not considered whether the petitioner voluntarily gave up the membership. The learned counsel appearing for the 3rd respondent submitted that there are pleadings to that effect also. Hence, that contentions also have to be considered by the Election Commissioner. To facilitate the Election Commissioner to pass a fresh order, the impugned order can be set aside.

Therefore, this Writ Petition is disposed of with the following directions:

               a) Ext.P4 order allowing O.P.No.53 of 2018 is set aside, and O.P.No.53 of 2018 is restored.

               b) The Kerala State Election Commission, Thiruvananthapuram, is directed to reconsider O.P.No.53 of 2018, as expeditiously as possible.

               c) The Election Commission will consider the matter independently afresh, untrammelled by the observation in the order in O.P.No.54 of 2018, because this Court has not set aside that order.

               d) All the contentions of the petitioner and 3rd respondent are left open”.

5. Being aggrieved, the appellant-3rd respondent approached this Court with the present writ appeal.

6. Heard the learned counsel for the appellant, the learned Senior counsel for the 1st respondent, the learned Senior Government Pleader and the learned Standing Counsel for the Election Commission.

7. The learned counsel for the appellant, by inviting our attention to Ext.P4 order of the Election Commission and also the judgment of the learned Single Judge, submitted that the learned Single Judge went wrong in holding that the Election Commission did not consider the case of the 1st respondent-writ petitioner that there is no whip. In fact, the Election Commission has considered the aforesaid contention in detail in Ext.P4 order and found that in view of Section 27 of the General Clauses Act, the whip is deemed to have been served on the 1st respondent. The learned counsel relied on the judgments of the Apex Court in Har Charan Singh v. Shiv Rani [(1981) 2 SCC 535], C.C. Alavi Haji v. Palapetty Muhammed [(2007) 6 SCC 555] and that of this Court in Biju R.S. v Kerala State Election Commission [2009 (2) KHC 839], Joseph K.M v. Babychan Mulangasseri [2015 (1) KHC 111], and Praveena Ravikumar v. State Election Commission [ 2024 (2) KHC 184]

8. The learned Senior Counsel appearing for the 1st respondent-writ petitioner by inviting our attention to Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 and also the judgment of the Apex Court in C.C. Alavi Haji [(2007) 6 SCC 555] argued that the service of whip to the 1st respondent-writ petitioner cannot be deemed as served in the instant case since the necessity of service of notice provided under Section 138 of the Negotiable Instruments Act and under the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, are entirely different.

9. The learned Standing Counsel for the Election Commission would argue that though the 1st respondent-writ petitioner challenged the claim of meeting of the political party before issuing the whip, as per Section 3(3) of the Kerala Local Authorities (Prohibition of Defection) Act 1999, and Rule 4(1)(i) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, before issuing a whip it is not necessary to convene a meeting of the political party at present. The learned Standing Counsel relied on the judgment of this Court rendered by one among us (Anil K. Narendran, J.) in Benny M.V. v. State Election Commission [ILR 2021 (3) Ker. 333] in support of his arguments.

10. Sections 3 and 4 of the Kerala Local Authorities (Prohibition of Defection) Act 1999, based on which the 1st respondent-writ petitioner was disqualified as per Ext.P4 order of the Election Commission, read thus:

               “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, except 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 an 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 or given support as a candidate for the election.

               "(2) The direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.

               (3) Where any dispute arises regarding the direction issued under this section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid.

               4. Decision on question as to disqualification on ground of defection

               (1) If any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of this Act a member of that local authority or the political party concerned or a person authorised by it in this behalf may file a petition before the State Election Commission for decision.

               (2) The State Election Commission shall, after making such enquiry as it deems necessary, decide whether such member has become subject to such disqualification or not and its decision thereon shall be final.

               (3) Where the State Election Commission decides that a member has become subject to disqualification under sub-section (2), he shall cease to be a member from the date of such decision and shall be disqualified for contesting as a candidate in an election to any local authority for six years from that date”.

11. Similarly, Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules 2000, which provides the manner in which direction has to be served on a member of the local authority, reads thus:

               “Rule 4. The manner in which a Political party or Coalition may give direction to its members.--

               (1) If a political party or coalition gives any direction in respect of the casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3, it shall be in writing and such a direction shall be given,--

              

               (ii) In the case of a member who belongs to a coalition or considered to be included in it; by the member whom the members of the said coalition and the members considered to be included in it in the local authority concerned elect for the purpose, on majority basis from among themselves.

               (iii) x x x x

               (2) While issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgement due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary”. (underline supplied)

12. In Biju R.S [2009 (2) KHC 839], while considering the issue of disqualification of voluntarily giving up the membership of one’s party, a learned Single Judge of this Court, the portion of which is extracted in the impugned judgment, held thus:

               “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 PW 2 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”.

(underline supplied)

13. In Joseph K.M. [2015 (1) KHC 111], a Division Bench of this Court wherein one among us [Anil K.Narendran, J.] is a party held thus:

               “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 : AIR 1993 SC 412]. 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."

(underline supplied)

14. In Benny M.V [ILR 2021 (3) Ker. 333], one among us [Anil K. Narendran, J] held thus:

               “23. As per clause (i) of sub-rule (1) of Rule 4, prior to its substitution by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, for the information of the members, the contents of the direction in writing shall be read over by the member, who shall be elected by the members belonging to the political party and the members considered as included in the political party jointly, based on majority from among themselves, and the direction so read shall be deemed to have given directly to the members. In any case, in the absence of the member elected by majority or if that member refuses, another member belonging to the same party shall read over the direction in writing. As per clause (iii) of sub-rule (1) of Rule 4, if any dispute arises between the member elected on majority, as provided in clause (i) of sub-rule (1), and the political party concerned, the direction given as aforesaid shall be deemed to be valid.

               24. By the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, which came into force with effect from 06.08.2014, the requirement in clause (i) of sub-rule (1) of Rule 4 of the Rules that the contents of the direction in writing shall be read over to the members belonging to the political party and the members considered as included in the political party is dispensed with. By the said Amendment Rules, clause (iii) of sub-rule (1) of Rule 4 is omitted. Before omission of clause (iii) of sub-rule (1) of Rule 4, sub-section (3) is added to Section 3 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013, with effect from 10.01.2013, which provides that, where any dispute arises regarding the direction issued under the Section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid. Therefore, the question as to whether there was a meeting of the Parliamentary Party and a decision to field a candidate for the post of President or Vice President are not at all relevant in an enquiry conducted by the State Election Commission, under sub-section (2) of Section 4 of the Act, in order to decide whether a member has become subject to disqualification, on the ground of defection by acting contrary to the direction in writing (whip) issued by the person authorised by the political party, especially after the amendment of clause (i) of sub-rule (1) of Rule 4 of the Rules. In the case of a member belonging to a political party and a member considered as included in a political party, once the issuance of a direction in writing (whip) by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election, in terms of clause (iva) of Section 2 and clause (a) of sub-section (1) of Section 3 of the Act and clause (i) of sub-rule (1) of Rule 4 of the Rules, is established the State Election Commission need not examine the internal activities of that political party leading to the issuance of such a whip. As already noticed, even before the addition of subsection (3) to Section 3 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013, clause (iii) of sub-rule (1) of Rule 4 of the Rules, which was in force till its omission with effect from 06.08.2014, provided that, if any dispute arises between the member elected on majority, as provided in clause (i) of sub-rule (1), and the political party concerned, the direction given as aforesaid shall be deemed to be valid. In that view of the matter, the contention of the writ petitioners that, since the 2nd respondent herein failed to prove Exts.X1 and X2 minutes, which were marked subject to proof, Ext.P3 whip issued by PW2 cannot be treated as a valid whip and as such, their abstention in the election meeting held on 20.08.2014 will not amount to disqualification on the ground of defection for violating Ext.P3 whip issued by PW2, can only be rejected as untenable and I do so”. (underline supplied)

15. While coming to the facts of the present case, the appellant is the elected member representing Ward No.13 of Thidanadu Grama Panchayat. The 1st respondent-writ petitioner is a member elected from Ward No.4 of the said Panchayat. Both of them contested and won the election under the ticket of the political party, Kerala Congress (Mani) Group. In the Grama Panchayat, Kerala Congress (Mani), which is part of the coalition of UDF had four members. Four members belonged to the Indian National Congress, three members belonged to Kerala Congress (Secular), and one member each belonged to B.J.P., C.P.I.(M) and C.P.I., respectively. The appellant was elected as the President of the Grama Panchayat. Six members of the Panchayat moved a no-confidence motion against the President and Vice President, and the Secretary of the Panchayat issued notice to all the members to discuss the motion on 15.05.2018. According to the appellant, the District President of Kerala Congress (Mani) convened a parliamentary party meeting on 07.05.2018 and the 1st respondent-writ petitioner also participated in that meeting. Subsequently, a written direction (whip) was issued to the Panchayat members to abstain from participating so as to oppose the no-confidence motion against the President and Vice President to be held on 15.05.2018. The whip was sent to the 1st respondent by registered post with acknowledgement due by the District President of the party. However, the whip sent by registered post was returned unserved with the endorsement ‘addressee out of station’. The appellant contends that the 1st respondent-writ petitioner purposefully kept himself absent from his house, knowing the contents of the whip and hence, due to abundant caution, the District President directed one A. T. Thomas, the Thidanadu Mandalam President of Kerala Congress (Mani), to serve the whip on the 1st respondent at his house. There upon the said A.T. Thomas, along with one Scariah Joseph Puttanani, the Mandalam Secretary, and Alosius Abraham Palathunkal went to the house of the 1st respondent and affixed the whip on the front door of the house since the 1st respondent was not available in the house. However, the 1st respondent participated in the meeting held on 15.05.2018 and voted in favour of the no-confidence motion against the President, that is, the appellant and also against the Vice President. It was in that backdrop that the appellant filed Ext.P2 O.P. No.53 of 2018 and also O.P. No.54 of 2018 before the Election Commission.

16. To O.P.No.53 of 2018, the 1st respondent-writ petitioner filed objections dated 17.03.2020, contending that no such whip was served upon him and there was no decision of his political party to vote against the no-confidence motion moved against the President and Vice President. The Election Commission considered Ext.P2 original petition filed by the appellant, along with O.P. No.54 of 2018 filed by the appellant in respect of the no-confidence motion passed against the Vice President of the Grama Panchayat. Before the Election Commission, from the side of the appellant PWs 1 to 5 were examined and Exts. A1 to A9 documents were marked. From the side of the 1st respondent-writ petitioner, RW1 to RW4 were examined. Through the Panchayat Secretary, Ext.X1 document was also tendered in evidence. Based on the pleadings and evidence, the Election Commission raised the necessary points for consideration, such as; (i) whether the 1st respondent had committed defection as provided by Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and (ii) whether the 1st respondent is liable to be declared as disqualified to contest any to the local body for a period of six years?

17. After a detailed analysis of the pleadings and evidence, the Election Commission came to the conclusion that the whip sent to the 1st respondent by registered post was deemed as served by virtue of Section 27 of the General Clauses Act and by casting the vote against the directions in the whip, the 1st respondent is disqualified under Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. As far as the 2nd point is concerned, no finding was entered by the Election Commission since even on the 1st point, the Ext.P2 petition is found in favour of the appellant.

18. We have carefully gone through the evidence of the witnesses examined before the Election Commission and the materials placed on record. We have also perused Ext.P4 order of the Election Commission as well as the impugned judgment of the learned Single Judge. Though the learned Single Judge in paragraph 7 of the impugned judgment held that the Election Commission did not consider the contentions of the 1st respondent regarding the non-existence of the whip, the perusal of Ext.P4 order of the Election Commission would show that the said aspect was considered in detail by the Election Commission.

19. In the instant case, it is not in dispute that the 1st respondent-writ petitioner participated and won the election under the banner of the political party Kerala Congress (Mani), which had a coalition with the UDF. It is also not in dispute that in the no-confidence motion moved on 15.05.2018, the 1st respondent cast the vote supporting the no-confidence motion. When the appellant states that there was a parliamentary party meeting convened by the District President of Kerala Congress (Mani) to take a decision to abstain from voting in the no-confidence motion, the 1st respondent states that no such party meeting was held to take a decision regarding the stand to be taken in the no-confidence motion. However, in paragraph 5 of Ext.P3 objection filed by the 1st respondent before the Election Commission, it is stated that the decision was taken by the political party as alleged in paragraph 8 of the petition and no such intimation was communicated to the 1st respondent. Whatever it may be, as per Section 3(3) of the Kerala Local Authorities (Prohibition of defection) Act 1999, and Rule 4(1)(i) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, as extracted above, the whip issued by a person authorised from time to time to recommend the symbol belonging to the political party to that member during election will be sufficient to accept the genuinity of the whip. PW2, the District President of Kerala Congress (Mani), deposed before the Election Commission that Ext.A3 is the whip issued by him. The aforesaid deposition of PW2 is supported by the evidence of the remaining witnesses examined from the side of the appellant. From the cross-examination of RW1 before the Election Commission, it is also clear that the 1st respondent-writ petitioner also has no dispute regarding the authority of PW2 to issue such a whip. In fact, the 1st respondent-writ petitioner, in his answers, admitted that it was PW2 who recommended the symbol to contest in the election. Therefore, viewed in the light of Section 3(3) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and the judgment in Benny M.V. [ILR 2021 (3) Ker.333] there is no circumstance to disbelieve the genuineness of Ext.A3 whip.

20. Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules 2000, if dissected, contains four parts. The first part states that the direction mentioned in sub-rule (1) if served to the person concerned directly, a receipt shall be obtained. Secondly, the Rule says that if it is sent by registered post, the same shall be done along with an acknowledgement due. The third part says that if it is effected by affixture, the same shall be done in the presence of at least two witnesses. Fourthly, the Rule says that a copy of the direction in writing shall also be given to the Secretary.

21. When the Secretary of the Panchayat was examined as PW4 before the Election Commission, no dispute was raised regarding the handing over of a copy of the Ext.A3 whip to PW4. Though evidence was tendered before the Election Commission that Ext.A3 whip was affixed on the front door of the house of the 1st respondent in the presence of the two witnesses who were examined before the Election Commission, we are not entering into that aspect since no definite finding was given by the Election Commission in that aspect, in Ext.P4 order.

22. Now the question is whether Ext.A3 whip can be deemed as served to the 1st respondent-writ petitioner to hold that he was aware of the contents of the whip and hence purposefully evaded the service of the same.

23. Section 27 of the General Clauses Act, 1897, relied on by the appellant to claim that Ext.A3 whip was deemed as served on the 1st respondent-writ petitioner and accepted by the Election Commission, reads thus:

               “27. Meaning of service by post

               Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either or the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.

24. Though the Election Commission relied on Section 27 of the General Clauses Act, 1897 to arrive at a finding regarding deemed service of a postal article to the addressee, it is relevant to note Section 26 of the Kerala Interpretation and General Clauses Act, 1125, which is in parimateria with Section 27 of the General Clauses Act, 1897, with the only difference that it applies to all the Acts whereas Section 27 of the General Clauses Act refers to Central Act and Regulations. The said Section reads thus:

               “26. Meaning of service by post

               Where any Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post or anchal, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post or anchal”.

25. In Har Charan Singh [(1981) 2 SCC 535], while considering the question of service of notice to a tenant under the provisions of the Rent control Act, returned with endorsement of the postman on the envelope, ‘Refused’. Returned to the sender, held thus:

               “7. Section 27 of the General Clauses Act, 1897 deals with the topic - 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document. and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The Section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the Section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act 1897 and Section 114 of the Indian Evidence Act”.

(underline supplied)

26. In C.C. Alavi Haji [ (2007) 6 SCC 555], while considering the question of service notice to the accused in a complaint under Section 138 of the Negotiable Instruments Act, the Apex Court held thus:

               “4. Chapter XVII of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some more Sections were inserted in the Chapter and some amendments in the existing provisions were made. Though, in this reference, we are not directly concerned with these amendments but they do indicate the anxiety of the Legislature to make the provisions more result oriented. Therefore, while construing the provision, the object of the legislation has to be borne in mind.

xxx xxx xxx xxx

               14 Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. (Vide - Jagdish Singh v. Natthu Singh [AIR 1992 SC 1604 : 1992 KHC 775 : 1992 (1) SCC 647], State of M.P. v. Hiralal and Others [1996 (7) SCC 523] and V. Raja Kumari v. P. Subbarama Naidu and Another [AIR 2005 SC 109 : 2004 KHC 1206 : 2004 (3) KLT 799 : 2004 (8) SCC 774 : 2005 (1) KLD 1]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved”.

(underline supplied)

27. The learned Senior Counsel appearing for the 1st respondent vehemently argued that Ext.A3 is only an envelope which is claimed as containing the whip, and the whip is not proved by producing it in evidence before the Election Commission. This argument was countered by the learned counsel for the appellant by pointing out that the whip itself is marked as Ext.A3 in O.P.No.53 of 2018 before the Election Commission. The learned counsel submitted that the whip was sent to the 1st respondent by folding and affixing stamp on the letter of whip. The address of the 1st respondent was entered in the folded outer page of the paper wherein the whip is entered and it was not sent in an envelope.

28. While going through the materials on record, we find that the evidence of witnesses and also Ext.P4 order of the Election Commission makes it clear that Ext.A3 is the original whip sent to the 1st respondent-writ petitioner, and it was not sent in an envelope. Therefore, the aforesaid argument of the learned Senior Counsel that the whip is not proved by producing it in evidence before the Election Commission holds no merit.

29. Though the 1st respondent states that he had intimated in writing to the authorities concerned about his temporary shifting from his house, there is no evidence for the same. It is neither pleaded nor stated in evidence as to the date of any such intimation, and also the details of persons informed. The 1st respondent has no case that his address mentioned in Ext.A3 whip is incorrect. There is no dispute on the point that Ext.A3 whip sent to the 1st respondent by registered post was returned with an endorsement ‘addressee out of station’.

30. During the course of arguments, the learned Senior Counsel for the 1st respondent would submit that the said endorsement is not sufficient to infer an attempt of service of notice to the 1st respondent through registered post, without examining the postman. Therefore, it is relevant to note Sections 14 and 119(f) of Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’ in short) which substituted Sections 16 and 114(f) of the Indian Evidence Act, 1872, while appreciating the aforesaid contention of the learned Senior Counsel.

31. Section 14 of BSA reads thus:

               “Existence of course of business when relevant -When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

               Illustrations.

               (a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant.

               (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Return Letter Office, are relevant”.

32. Section 119 (f) of the BSA provides that the common course of business has been followed in a particular case. By referring to these provisions, in Sali Mohan v. Kolazhi Grama Panchayath, Thrissur [2015 (4) KHC 261], one among us [Anil K. Narendran, J.] held thus:

               “18. As I have already noticed, Section 27 of the General Clauses Act, 1897 as well as Section 26 of the Interpretation and General Clauses Act, 1125 do not lay down an inflexible or conclusive presumption as to service of notice by registered post. It only states that a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act”.

(underline supplied)

33. In Praveena Ravikumar [2024 (2) KHC 184], a learned Single Judge of this Court, while considering the return of the whip sent through registered post as unclaimed, held thus:

               “22. Refusal of notice and notice returned as unclaimed, both tantamount to service of notice if it was intimated within time especially in the context of the Act. Otherwise, every wily recipient would be able to defeat the process of law by allowing the postal article to be returned as unclaimed. In Harcharan Singh v. Smt.Shivrani [(1981) 2 SCC 535] and in Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647], the Supreme Court had observed that a notice refused to be accepted can be presumed to have been served on him. In the said decisions, the Supreme Court observed that when a notice is sent to the correct address, the obligation of the sender ends with that, and if he does not claim the notice, it shall be deemed that there was valid service of notice. Viewed in the above perspective, it is evident that the respondents were served with the whip.

               23. Even otherwise, by virtue of Ext.A10 and Ext.A11, the President of the DCC authorised Sri. S. Vijayakumar to affix the whip on the residents of the respondent's house. Ext.A10 and Ext.A11 are the whips affixed on 30.12.2021 at 3 pm in the presence of the witnesses at the front door of Smt. Praveena Ravikumar and Ext.A12 series and Ext.A13, apart from Ext.A14 photographs, are the evidence adduced showing affixture of notice to Sri. M. Rajendran. The copy of the whip was sent to the Secretary of the Munnar Grama Panchayat, as evidenced by Ext.A15 and Ext.A16, respectively, and the acknowledgements were also produced as Ext.A17 and Ext.A18 and further by Ext.A19 the whips were again handed over to the Secretary of the Panchayat personally. Thus, it is evident that there was a valid whip issued in writing to the respondents, and even served on each of them apart from the secretary of the Panchayat”.

(underline supplied)

34. From the provisions quoted and the judgments cited supra, it is clear that the presumption can be drawn with regard to the endorsement on the postal article also, unless proved otherwise. Such a proof is conspicuously absent in the instant case, and therefore it is presumed that Ext.A3 whip is attempted to be served to the 1st respondent - writ petitioner.

35. When there is no proof to the fact that the 1st respondent-writ petitioner kept himself away from the house after intimating the same to the authorities concerned as claimed by him, in view Section 26 of the Kerala Interpretation and General Clauses Act, 1125, which is in parimateria with Section 27 of the General Clauses Act, 1897, it is only to be inferred that the service of said whip deemed to be effected. Though the judgments on his point relied on by the learned counsel for the appellant are in respect of different circumstances, the deemed service of notice provided under Section 26 of the Kerala Interpretation and General Clauses Act, 1125, which is in pari materia with Section 27 of the General Clauses Act, 1897, is applicable to the instant case also.

36. Having considered the entire pleadings and materials on record, including the evidence adduced before the Election Commission, we find that the learned Single Judge grossly erred in holding that the Election Commission failed to appreciate the contention of the 1st respondent-writ petitioner regarding the non-existence of the whip in Ext.P4 order. Therefore, the matter ought not have been sent back to the Election Commission for reconsideration. We are not entering into the contention pertaining to voluntarily giving up membership by the 1st respondent-writ petitioner, since the same is not decided by the Election Commission, and is unnecessary since the grounds for disqualification under the first and second limbs of clauses (a) and (b) of the sub-section (1) of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, are distinct and are not interlinked.

37. The upshot of the above discussion is that the impugned judgment of the learned Single Judge is liable to be set aside and the writ petition is to be dismissed by upholding Ext.P4 order of the Election Commission.

In the result, the writ appeal is allowed by setting aside the impugned judgment dated 21.10.2025, passed by the learned Single Judge in W.P.(C)No.19905 of 2023, and the writ petition stands dismissed.