K.M. Joseph, J.

The appellant and the 5th respondent polled six votes in the election held for electing the President of the 3rd respondent Panchayat. The first respondent Returning Officer proceeded to draw lots. The appellant was declared elected and sworn in as the President of the Panchayat. The 5th respondent complained to the first respondent that the procedure adopted was illegal. The appellant is informed by Ext.P2 that she could assume the office of the 4th respondent (State Election Commission). By Ext.P3, the 4th respondent found that the procedure adopted for selecting the appellant was wrong in purported exercise of supervisory powers of the 4th respondent and the declaration of the results as well as the selection of the appellant was found to be ab initio void. Ext.P4 was issued notifying that the 5th respondent would be sworn in as the President of the Panchayat on 3.1.2014. This Writ Petition is filed seeking to quash Exts.P3 and P4. The learned Single Judge dismissed the Writ Petition.

2. We heard the matter at the admission stage itself. We heard the learned counsel for the appellant, the learned Standing Counsel for respondents 1 and 4 and the learned counsel for the 5th respondent.

3. Learned counsel for the appellant would submit that the result of the election was declared and the appellant was elected as a President. She took oath as contemplated in section 1S. 153(13) of the Kerala Panchayat Raj Act, 1994 herein after referred to as ‘the Act. The oath was taken by her before the officer authorised by the Government and not by the Election Commission. After declaration of the result and what is more even taking of the oath the Election Commissioner has no jurisdiction to interfere with the election for returned candidate. He further draw our attention to section 153(13a) which reads as follows:

(13a) The State Election Commission may declare the office of the president or vice-president, as the case may be, as vacated on his own motion where the person has not entered upon his office without sufficient cause by taking oath or affirmation within a period of fifteen days from the date he was declared as elected as president or Vice-President of a Panchayat of any level."

4. He would point out that such contingency does not arise in this case. It would further point out that the learned Single Judge has proceeded to proceed on lines of judgment of the learned Single Judge in W.P.(C) No. 3538 of 2009. He made available a copy of the judgment. He would point out that a perusal of the judgment would show that was not a case where the Election Commission had interfered with the election. He reiterates the Election Commission has no jurisdiction after the declaration of the result and what is more in the facts of the case with the taking of oath by the appellant. The Learned counsel for the appellant however not dispute fairly the finding of the learned Single Judge that the result of the draw of the lot was decided by the Returning Officer with reference to the wrong rule and it was on a misconception that the Returning Officer applied the wrong rule. But that is not to say that once the result of the election is declared and what is more oath is taken the Election Commission would have still the authority to undo the result of the election. It is a question of lack of power. In order to buttress his argument he draws our attention to the decision reported in Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759. In paragraph 24, the Apex Court held inter alia as follows:

24. It may be noticed that the petition by Kamal Sharma was filed on 6.2.2000 and the same was allowed by the Election Commission the very next day i.e., on 7.2.2000 by which a direction was issued to the Retuning Officer to hold a fresh scrutiny. There is nothing on record to indicate nor it appears probable that before passing the order, the Election Commission issued any notice to Bachan Singh. Apparently, the order was passed behind his ba