K.S. Radhakrishnan, J.

The cardinal question that has come up for consideration before us is whether we should issue a writ of quo warranto against a' duly elected Deputy Chairperson of a Municipality on the sole ground that he could not make and subscribe his oath of office before the Chairperson not due to his fault, but due to non election of the Chairperson.

2. Deputy Chairperson was duly elected by the elected councilors of the Municipality and was/is ready and willing to make and subscribe his oath before the Chairperson if elected. Can the mandate of the electorate be ignored for the, sole reason of non availability of the Chairperson before whom the elected Deputy Chairperson has to make and subscribe his oath of office. Should the will of the electorate succumb to, such man made situations thereby making the democratic process, a mockery. Whether the court should exercise its discretion by issuing a writ of quo warranto to unseat a duly elected Deputy Chairperson of the Municipality, defeating, the democratic process especially when the elected Deputy Chairperson is not at fault. These are some of the issues that have come up for consideration in these cases, for which we have to find solutions.­

3. Third respondent in W.P.C. No.28913 of 2005 was elected as Deputy Chairperson of Palakkad Municipality in accordance with S.12 of the Kerala Municipalities Act read with the Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules 1998. Election was held on 6.10.2005. Deputy Chairperson was expected to make and subscribe oath of office before the Chairperson of the Municipality as per S.143(2) of the Act. Chairperson was however not elected thereby Deputy Chairperson could not make and subscribe his oath though he was always ready and willing to make and subscribe his oath 6f office before, the Chairperson. S.143(2) of the Act authorises the Government to nominate a person before whom Chairperson could make and subscribe his oath or affirmation. Government nominated the Returning Officer as the person before whom Chairperson has to make and subscribe his oath. Since Chairperson was not elected Deputy Chairperson was permitted by the Election Commission to make and subscribe big oath or affirmation before the Returning Officer nominated by the Government, before whom-Chairperson has to make and subscribe oath. Government did not object to the said course, nor the councilors. Deputy Chairperson therefore made and subscribed his oath before the returning Officer and assumed office.

4. Elected councilors did not find any infirmity in the procedure followed by the Election Commission, nor the Government, but a voter in Ward No.25 approached this court by a writ petition under Article 226 of the Constitution of India seeking issuance of writ of quo warranto commanding the third respondent to show cause under what authority he holds the office of Deputy Chairperson of Palakkad Municipality and also for a declaration that the election to the post of Deputy Chairperson of Palakkad Municipality held on 6.10.2005 as well as the taking of oath of office is illegal. Writ of prohibition was also sought restraining the third respondent from functioning as the Deputy Chairperson of Palakkad Municipality. Rest of the reliefs sought for in other writ petitions are only consequential. Learned single Judge held that, third respondent was an usurper of the office of the Deputy Chairperson and issued a writ of quo warranto legality of which is under challenge in Writ Appeal No.2408 of 2005.

5. The Kerala Municipality Act, 1994 was enacted to replace the enactments relating to Municipalities and Municipal Corporations then in force by a comprehensive enactment in line with the Constitution (Seventy Fourth) Amendment Act 1992 for securing greater measure of participation of-the people in planned development and in local governmental affairs and to endow, such Municipalities with necessary 'powers and authority to enable t