1. The petitioner is the President of Keerampara Panchayat in Ernakulam District. The 2ndrespondent herein filed O.P.No.43 of 2012 before the Kerala State Election Commission (for short ‘the Commission) seeking to disqualify the petitioner from being a member in the said Panchayat on the allegations that she had committed financial irregularities and misused her power as President of the Panchayat and also caused loss to the Panchayat. The petitioner submitted Ext.P2 preliminary objection before the Commission to the effect that the said Original Petition is not maintainable before the Commission owing to its total lack of jurisdiction to entertain the same. Ext.P3 application to determine the said preliminary objection was also submitted before the Commission. Subsequently, the Commission passed Ext.P4 order dismissing the said application and this Writ Petition is filed seeking quashment of Ext.P4 by issuing a writ of certiorari or any other appropriate writ, order or direction. The further prayers are as follows:-

“(ii) To issue a Writ of Prohibition restraining the State Election Commission from entertaining or further continuing with Exhibit P1 petition since it wholly lacks jurisdiction to do so.

(iii) Alternatively to issue a Writ of Mandamus commanding the State Election Commission to determine the question of maintainability first and then only proceed with Exhibit P1 petition.

(iv) To issue such other writs, orders or directions as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

2. I have heard the learned counsel appearing for the petitioner, the learned counsel for the second respondent and also the learned Standing Counsel for the Kerala State Election Commission.

3. The contention of the petitioner is that in terms of the provisions under Article 243F(2) of the Constitution of India the Commission could exercise powers to disqualify a person for being a member of a Panchayat only under an enactment made by the State Legislature and the only enactment made by the Kerala State Legislature in that regard is the Kerala Local Authorities (Prohibition of Defection) Act, 1999. It is further contended that the only other provision that empowers the Commission to disqualify a member of a local authority lies under S.36 of the Kerala Panchayat Raj Act (for short ‘the Act’) and the case which was registered and numbered as O.P.No.43 of 2012 has been filed under S.35(1)(o) of ‘the Act’ and that the said provision did not provide for making such an application. It is also contended that the question of determination of the loss, waste or misuse of a member of a Panchayat under S.35(1)(o) of ‘the Act’ is not a matter falling within the scope of power of the Commission. To lend support to the said contentions the petitioner relies on the decisions of this Court in Anil Kumar v. Kerala State Election Commission (2007 (2) KLT 303) and Marykkutty Mathew v. State Election Commission (2002 (3) KLT 773). A scanning of the pleadings in this Writ Petition would further reveal that essentially, the contention of the petitioner is that the power to decide and determine the loss, waste or misuse of a member of a local authority lies with the Ombudsman for Local Self Government Institutions and the Election Commission got no power to determine whether loss has occurred by the conduct of a member to the concerned Local Self Government Institution even for the purpose of disqualifying a member.

4. A perusal of the impugned Ext.P4 order would reveal that based on Ext.P2 preliminary objection filed by the petitioner herein the Commission identified three points for consideration as preliminary objections and they read as follows:-

(1) The Election Commission is incompetent to disqualify a member of a local authority under S.35(1)(o) of the Kerala Panchayat Raj Act unless the Ombudsman for Local Self Government Institutions determines the loss, misuse or waste alleged to have been caused by the said member.

(2)