A very difficult question relating to preparation of electoral roll in a Panchayat bye election arises in this case. The petitioners claim to be persons residing in the address given in the writ petition. Going by the same, they are persons, who are entitled to be included in the electoral roll for Ward No.19 of the Shornur Municipality. Election notification for bye - election to that Ward was notified on 14.11.2008. The names of the petitioners were included in the draft electoral roll . Against inclusion of the names of the petitioners in the draft electoral roll, the 5th respondent filed complaint contending that the petitioners are not ordinarily resident in that ward of the Municipality and therefore not entitled to be included in the electoral roll. Based on the complaint of the 5th respondent, Exts.P6 to P9 notices were issued to the petitioners for an enquiry by the Registration Officer. At the time of enquiry, the 5th respondent did not appear. Thereafter, the objection raised by the 5th respondent was rejected and final electoral roll was prepared and published on 7.10.2008, including the petitioners also therein, by Ext.P11. Going by Rule 22 of the Kerala Municipality (Registration of Electors) Rules, an appeal against the decision of the Registration Officer in the matter of publication of electoral roll lies with the appellate authority. However, there are two conditions attached to the invocation of the right of appeal. One is that the appeal shall not lie where the person desiring to appeal has not availed himself of his right to be heard by or to make representations to the Registration Officer on the matter which is the subject matter of the appeal. Second is that the appeal should have been filed within 15 days from the date of announcement of the decision.

2. The 5th respondent filed an appeal against the order of the Registration Officer refusing to delete the names of the petitioners from the draft electoral roll. Although the appeal suffered from the two vices mentioned above, for the reasons best known to him, the appellate authority chose to entertain the appeal. Thereafter, by Ext.P12 notification issued on 20.11.2008, the names of the petitioners were deleted from the electoral roll, purportedly, on the basis of an order passed on 14.11.2008 in the appeal filed by the 5th respondent, which order was not communicated to the petitioners. The petitioners are now challenging Ext.P12 order seeking the following reliefs:

"i) Call for the records leading to Ext.P12 and may be pleased to quash the same.

ii) Issue an appropriate writ, order or direction commanding the second respondent to consider Ext.P13 and to decide the same within such time as may be fixed by this Hon'ble Court"

3. A counter affidavit has been filed by the 5th respondent and the 6th respondent Election Commission has filed a statement . The 5th respondent does not dispute the fact that he did not avail of his right to be heard by the Registration Officer at the time of consideration of his objections against inclusion of the names of the petitioners in the electoral roll. He also does not dispute the fact that the appeal was filed beyond the time stipulated in Rule 22. The said facts are endorsed by the Election Commission also in their statement. However, the contention now raised before me is that notwithstanding the fact that the appellate authority could not have entertained the appeal under Rule 22 pursuant to the order passed by him, the names of the petitioners have been deleted from the electoral roll and the last date for submitting nominations in the bye election was on 21.11.2008. Therefore, going by the prohibition in sub Section 3 of Section 80 of the Kerala Municipality Act, the names of the petitioners cannot now be included in the electoral roll.

4. In answer to the above contentions, the petitioners would contend that the question of addition of the petitioners in the electoral roll does not arise. According to