JUDGMENT : The above writ petition is filed with the following reliefs: “i. call for records leading to Ext.P2 and issue a writ in the nature of certiorari quashing Ext.P2 in so far as it declares the 5th respondent as elected to the post of Chairperson of Piravom Municipality. ii. declare that in view of the fact that petitioner's name was drawn in the lot by the 2nd respondent, petitioner is elected as Chairperson of Piravom Municipality in view of Rule 8(7)(a) of Kerala Municipality (Election of President and Vice President) Rules ,1995. iii. Issue a writ in the nature of mandamus commanding respondents 1 and 2 to declare the petitioner as elected as Chairperson of Piravom Municipality in view of the fact that petitioner's name was drawn in the lot as per Rule 8(7)(a) of the Kerala Municipality (Election of President and Vice President) Rules 1995. iv. issue such other orders, writs or directions as are deemed fit by this Hon'ble Court. v. award cost of this proceedings to the petitioner. vi. dispense with filing of the translation of vernacular documents produced as Exhibits in the writ petition.”(SIC) 2. The post of the Chairperson of Piravom Municipality fell vacant on resignation of the Chairperson on 16.01.2024. The 1st respondent - Election Commission, has nominated the 2nd respondent as the Returning Officer for conducting the election to the post of Chairperson of Piravom Municipality. The 2nd respondent as Returning Officer has fixed the election on 31.01.2024 at 11 am in the Municipal office. Ext.P1 is the notice dated 19.01.2024 fixing the election on 31.01.2024 at 11:00 a.m. It is submitted that there are 27 municipal councillors in Piravom Municipality. All the 27 municipal councillors attended the election pursuant to Ext.P1, is the submission. It is submitted that the Left Democratic Front (LDF) is having a total number of 14 councillors out of 27 councillors and the United Democratic Front (UDF) is having a total number of 13 councillors. 3. In the election to the post of Chairperson of Municipal Council held on 31.01.2024, the petitioner as well as the 5th respondent - Jincy Raju, were the candidates contesting the election to the post of Chairperson of Piravom Municipality. 3. In the election to the post of Chairperson of Municipal Council held on 31.01.2024, the petitioner as well as the 5th respondent - Jincy Raju, were the candidates contesting the election to the post of Chairperson of Piravom Municipality. Since there were no other candidates contested for the post of Chairperson of Piravom Municipality, as per Rule 8 of the Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules 1995, (for short, “Rules, 1995”) a voting was conducted. After the voting had taken place, it was found that both the petitioner as well as the 5th respondent obtained 13 votes each and one vote of one LDF councillors was declared as invalid. Therefore, both the petitioner as well as the 5th respondent got equal number of votes i.e., 13 votes. 4. It is submitted that in accordance with Rule 8(7)(a) of the Rules, 1995, if there are only two candidates and in the event of both candidates obtaining equal valid votes, the Returning Officer has to draw lots in the meeting and declare the person whose name is first drawn as elected. Accordingly, the 2nd respondent, who is the Returning Officer, has decided to draw lots for electing Chairperson of Piravom Municipality since both the petitioner and the 5th respondent obtained 13 votes each. In the draw of lots, the name of the petitioner was drawn first. It is the case of the petitioner that, as per the Rules, 1995, the petitioner should have been declared as elected Chairperson of Piravom Municipality. Ext.P2 is the minutes. However, the Returning Officer after recording that the petitioner’s name was drawn in the lot decided that since the petitioner's name was drawn in the lot, she is to be excluded and the 5th respondent was declared as Chairperson of the Municipality. 5. In Ext.P2, it is clearly stated that both the petitioner and the 5th respondent obtained equal number of votes and the petitioner’s name was drawn in the lot first. It is an admitted case that the petitioner’s name was drawn in the lot first. It is submitted that the returning officer confused himself with the procedure under Rule 8(7)(a) and Rule 8(7) (c) of the Rules, 1995 and illegally declared the 5th respondent as the chairperson of Piravom Municipality. 6. The 5th respondent has sworn in as Chairperson of Piravom Municipality on the same day. It is submitted that the returning officer confused himself with the procedure under Rule 8(7)(a) and Rule 8(7) (c) of the Rules, 1995 and illegally declared the 5th respondent as the chairperson of Piravom Municipality. 6. The 5th respondent has sworn in as Chairperson of Piravom Municipality on the same day. Aggrieved by the same, the petitioner filed a complaint before the Election Commission as evident by Ext.P3. But, since the 5th respondent has already taken charge as Municipal Chairperson, the 1st respondent expressed his inability to do anything, is the submission. According to the petitioner, in similar circumstances, the Election Commission intervened and Ext.P4 is the order. In such circumstances, this writ petition is filed. 7. Heard the learned Senior Counsel Adv.Renjith Thampan instructed by Adv. V.M. Krishnakumar for the petitioner, the learned Senior Counsel Sri. S. Sreekumar instructed by Adv.Thomas V. Kuruvila for the 5th respondent, Adv. Deepu Lal Mohan - the learned Standing Counsel appearing for the 1st respondent and also Adv. K.S. Arun Kumar - the learned Standing Counsel appearing for respondent Nos.3 and 4. 8. A statement is filed by the 1st respondent. The 1st respondent submitted that the writ petition is not maintainable in law in view of the effective alternative statutory remedy available under Section 12(6) of the Kerala Municipality Act, 1994. But, in the statement, it is clearly stated that the Returning Officer committed a mistake and the 2nd respondent forwarded Annexure R1(a) letter to the 1st respondent stating that, by way of a bonafide mistake, draw of lots was done as per Rule 8(7)(c) instead of Rule 8(7)(a) of the Rules 1995. 9. A counter affidavit is filed by the 5th respondent. In the counter filed by the 5th respondent, it is stated that, Article 243ZG(b) of the Constitution of India stipulates that, no election to any municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. In the counter filed by the 5th respondent, it is stated that, Article 243ZG(b) of the Constitution of India stipulates that, no election to any municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. According to the 5th respondent, in the light of Section 12(6) of the Kerala Municipality Act, where any dispute arises as to the validity of the election of the Chairperson or Deputy Chairperson of a Municipality, any councillor of that Municipality may file a petition before the District Court having jurisdiction over area of the headquarters of that Municipality for decision and such decision shall be final. It is also submitted that the Election Commission become functus officio after the declaration of the election, especially after the returned candidate has taken oath, and the remedy available to the petitioner is to approach the District Court challenging the election to the post of Chairperson. The 5th respondent produced Exhibit R5(a), the certificate of election issued by the 2nd respondent and it is submitted that, after the declaration of result, she was sworn in as the Chairperson of the 3rd respondent Municipality at noon on the same day. It is submitted that she has been functioning as the Chairperson of the 3rd respondent Municipality. Therefore, it is submitted that the remedy of the petitioner is to approach the District Court and this Court may not interfere invoking the powers under Article 226 of the Constitution of India. 10. The first point to be decided in this case is whether the writ petition is to be entertained in this case because of the bar under Article 243ZG(b) of the Constitution of India. Article 243ZG(b) says that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. Section 12 of the Kerala Municipality Act deals with the election of the Chairperson and the Deputy Chairperson. Section 12 of the Kerala Municipality Act deals with the election of the Chairperson and the Deputy Chairperson. Section 12(6) is relevant in this case and the same is extracted hereunder:- 12(1) --- (2) --- (3) ---- (3)(A)---- (4) ----- (5) ----- (6) where any dispute arises as to the validity of the election of the Chairperson or Deputy Chairperson of a Municipality any councillor of that Municipality may file a petition before the District Court having jurisdiction over the area of the headquarters of that municipality, for decision and such decision shall be final. 6(A) The validity of election of the Chairperson or Deputy Chairperson shall not be called in question on the ground of any vacancy of the office of the councillors or any of the councillor was absent in the election meeting. 11. Section 12(6) says that, if any dispute arises as to the validity of the election of the Chairperson or Deputy Chairperson of a Municipality any councillor of that municipality may file a petition before the District Court having jurisdiction over the area of the headquarters of that Municipality for decision and such decision shall be final. The question to be decided is whether a “dispute arises” as to the validity of the election of the Chairperson. What is the meaning of “dispute arises?”. This Court in Kaprat Family Trust vs. Union of India (2024 KHC Online 64) considered the meaning of “dispute arises” mentioned in Section 3H(4) of the National Highway Act, 1956. It will be better to extract paragraph 16 of the above judgment. “16. From the above, it is clear that whether the “dispute arises” is something that will necessarily have to be decided. A simple dispute raised by a party without any basis cannot be treated as a “dispute arises” as per Section 3H(4) of the Act 1956. The Legislature has used the expression “arises” instead of “raised” in Section 3H(4) of the Act 1956. The same issue considered by the larger bench in the above decision. The dictionary meaning of “arises is “come into being”. Simply because a party raises a dispute, CALA need not refer the dispute to the civil court. The duty of the CALA is to find out whether a “dispute arises” in the facts and circumstances of each case. So there is no automatic reference to civil court, once a party raises a dispute. Simply because a party raises a dispute, CALA need not refer the dispute to the civil court. The duty of the CALA is to find out whether a “dispute arises” in the facts and circumstances of each case. So there is no automatic reference to civil court, once a party raises a dispute. The CALA has a duty to find out whether there is a “dispute arises” in the facts and circumstances of each case for which an enquiry is necessary. This is clear from Section 3G(3) of the Act of 1956 also where it is stated that the CALA shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. If there is any dispute arising in that “determination process” mentioned in Section 3G(3) of the Act 1956, then only the CALA need to refer the matter to the civil court.” 12. This Court observed that “dispute arises” is something that will necessarily have to be decided. A simple dispute raised by a party without any basis cannot be treated as a “dispute arises.” The Legislature has used the expression ‘arises’ instead of ‘raised’ in Section 12(6) of the Kerala Municipality Act, just like in Section 3H(4) of the National Highway Act, 1956. Therefore, whether there is a “dispute arises” as to the validity of the election of the Chairperson or the Deputy Chairperson of a Municipality is to be decided first. 13. It is an admitted fact that the election to the Piravom Municipality was conducted on 31.01.2024 and it is also an admitted fact that the petitioner and the 5th respondent obtained 13 votes each. It is also an admitted fact that the Returning Officer declared the 5th respondent as elected relying Rule 8(7) (c) of the Rules 1995. Rule 8(7)(c) applicable only if there are two or more candidates obtained equal number of votes and one among them is to be eliminated under Clause (b) for deciding which candidate is to be eliminated among such candidates obtaining equal number of votes, draw lots and eliminate the person whose name is first drawn. 14. Rule 8(7)(c) applicable only if there are two or more candidates obtained equal number of votes and one among them is to be eliminated under Clause (b) for deciding which candidate is to be eliminated among such candidates obtaining equal number of votes, draw lots and eliminate the person whose name is first drawn. 14. There is no dispute to the fact that in the facts and circumstances of the case, the Returning Officer ought to have applied 8(7)(a) of the Rules 1995, which says that if there are only two contesting candidates, declare the candidates obtaining most valid votes as elected and in the event of both candidates obtaining equal valid votes, draw lots in the meeting and the declare the person whose name is first drawn as elected. Rule 8(7)(c) is applicable only if there are two or more candidates who obtained equal number of votes and one among them is to be eliminated under Clause (b) for deciding which candidate is to be eliminated among such candidates obtaining equal number of votes, draw lots and eliminate the person whose name is first drawn. Rule 8(7)(b) says that if there are more than two contesting candidates and in the first voting, no candidate obtains votes more than the total number of votes obtained by all other candidates, then, the candidates who has obtained the least votes shall be eliminated from the election and thus the voting shall be repeated by eliminating the candidate obtaining the least vote in each voting until a candidate obtains more valid votes than the remaining candidate or the total number of votes obtained by the remaining candidates, as the case may be, and declare the candidate obtaining more votes as elected. 15. Admittedly, there were only two contesting candidates for the post of the Chairperson. It is also an admitted fact that the petitioner and the 5th respondent obtained equal votes. Therefore, the rule that is applicable is Rule 8(7)(a). As per that rule, the person whose name is first drawn is to be declared as elected. Admittedly, the 2nd respondent committed a mistake. Moreover, after the election, the 2nd respondent - Returning Officer submitted a proceeding to the Election Commission admitting the mistake as evidenced by Annexure R1(a). But the Election Commission is functus officio, after the election process is over. Therefore, the 1st respondent has not taken any decision. Admittedly, the 2nd respondent committed a mistake. Moreover, after the election, the 2nd respondent - Returning Officer submitted a proceeding to the Election Commission admitting the mistake as evidenced by Annexure R1(a). But the Election Commission is functus officio, after the election process is over. Therefore, the 1st respondent has not taken any decision. In such a situation, I am of the considered opinion that, since there is no “dispute arises” in this case, the petitioner need not approach the District Court to declare the election of the 5th respondent as illegal. There is no “dispute arises” in this case. The 1st and 2nd respondents admitted before this Court that the 2nd respondent committed a mistake invoking Rule 8(7)(c) of the Rules 1995 instead Rule 8(7)(a) of Rules 1995. It is in such circumstances, there is no “dispute arises” for challenging the election before the District Court under Section 12(6) of the Kerala Municipality Act. 16. The learned counsel for the 1st respondent relied the judgment of the apex court in Jaspal Singh Arora vs. State of M.P and others (1998 KHC 3913) and also the decision of Harnek Singh vs. Charanjit Singh and others (2005 KHC 1894). I am of the considered opinion that these decisions are not applicable to the facts of the present case because there is no “dispute arises” in this case. The counsel appearing for the petitioner relied on the judgment of Shailamma Issac vs. Retuning Officer, Anicadu Grama Panchayath ( 2014(2) KHC 17 ). The relevant portion of the above judgment is extracted hereunder:- “12. We must note that this is not a case where the learned Single Judge interfered with the election of the returned candidate. The learned Single Judge was called upon to interfere with the action of the Election Commission rectifying a mistake which is committed by the Returning Officer. 13. There can be no quarrel with the position which has been canvassed before us by the learned counsel for the appellant that after the declaration of the election, the election commission becomes functus officio. This is a case wherein aforesaid principle is not even disputed by the learned standing counsel for the election commission. The electoral laws invariably provides for remedy to the defeated candidate. This is a case wherein aforesaid principle is not even disputed by the learned standing counsel for the election commission. The electoral laws invariably provides for remedy to the defeated candidate. As far as the present case is concerned remedy is provided under Section 153(14a) ie., defeated candidate could approach the Court of the Munsiff and seek remedy therein. We would also reiterate that the election commission has no jurisdiction once a result is declared to interfere with the election process and what is more disturbing in this case no doubt after the returned candidate took oath. The oath was taken before the returning officer who in this case happened to be an officer of the Government fulfilling the requirements under S.153(13). 14. But the crucial question is having declared the law should we interfere with the judgment of the learned Single Judge. As already noticed this is a case where two candidates polled equal number of votes. Admittedly a draw was taken as mandated. A draw is the mandate under both the rules in question. The only difference is that in the case of one rule which was wrongfully applied by the Returning Officer a person whose name is first drawn will stand eliminated. That was wrongly applied. The actual rule which is applicable in this case was the person whose name is drawn first will stand returned. If only the Returning Officer had not committed this mistake, the 5th respondent would have been originally returned as the elected candidate. This is a case where there is absolutely no scope for any investigation into any dispute. There is no scope for any debate at all. No argument could possibly be raised as we have already noticed the fair stand adopted before us by the learned counsel for the appellant that the Returning Officer had committed a mistake. Therefore, this is a case where a mistake or illegality committed by the Returning Officer is beyond dispute. In such a case if we were to allow the appeal and grant the relief sought for by the appellant in the writ petition, the result would be though a person did not deserve under the Rules to be declared as a President he will govern. The election dispute before the Court being the remedy provided as suggested by the learned counsel for the appellant would necessarily take time. The election dispute before the Court being the remedy provided as suggested by the learned counsel for the appellant would necessarily take time. By the time the election dispute is resolved the term itself would end. In the special facts of this case, it would amount to a miscarriage of justice. The learned Single Judge having taken a view in the facts we would think that we need not in the exercise of our appellate jurisdiction interfere with the judgment of the learned Single Judge. Needless to say, we reiterate that the Election Commission has no jurisdiction in the matter. We are refusing to interfere with the matter in view of the special facts of the case and we also notice in this regard that consequent upon the dismissal of the writ petition the 5th respondent has already been took oath and has taken charge as the President. We dismiss the appeal.” 17. As far as the present case also, there is absolutely no “dispute arises” and therefore, this court is perfectly justified in interfering with the election by which the 5th respondent to be declared as elected. 18. Learned Senior counsel Sri. S.Sreekumar relied on the judgment of a Division Bench of this Court in Abdulla vs. Kerala State Election Commission and others ( 2020 (6) KHC 577 ), in which, the extent of interference of writ court while election to a democratic institution in progress, is examined in detail. The Division Bench observed that when there is a provision to challenge the election, that shall be resorted to and this court shall not invoke the jurisdiction under Article 226 of the Constitution of India. But here also, it is to be noted that the alternative remedy available under Section 12(6) of the Kerala Municipality Act is only applicable, when there is a ‘dispute arises’. In this case, there is no “dispute arises” and therefore, the petitioner need not challenge the election before the District Court under Section 12(6) of the Kerala Municipality Act. 19. The learned Senior Counsel Sri.Renjith Thampan, relied on the judgment of State of Goa and another v. Fouziya Imtiaz Shaikh and another (2021 KHC 6161). In this case, there is no “dispute arises” and therefore, the petitioner need not challenge the election before the District Court under Section 12(6) of the Kerala Municipality Act. 19. The learned Senior Counsel Sri.Renjith Thampan, relied on the judgment of State of Goa and another v. Fouziya Imtiaz Shaikh and another (2021 KHC 6161). The apex court observed that under Article 243ZG(b) of the Constitution of India, no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a state. But the apex court observed that this would mean that, from the date of notification of the election till the date of declaration of result, a judicial hands off is mandated by non obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once election process has begun until it is over. Now, admittedly the election process is over and the 5th respondent is declared as elected and he has sworn in. Relying the above principle also, this Court is justified in interfering with the election of the 5th respondent as the Chairperson. 20. The learned Senior Counsel - Adv.Sri. Renjith Thampan, also relied on the judgment of the Apex Court in Deputy Commissioner, Central Excise and Another v. Sushil & Company [2016 KHC 7098]. The relevant portion of the above judgment is extracted hereunder; “4.Before coming to the issue at hand, we may record the statement of Mr. A.K. Sanghi, learned Senior Counsel appearing for the appellant Department, that it was not appropriate for the High Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided. However, we find that the High Court has simply gone by the contract in question, which was entered into between the respondent and M/s Birla Corpn. Ltd. and taking into consideration all the averments, which were made in the show - cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show - cause notice are accepted, the said contract does not amount to providing any "Cargo Handling Service" as defined under Entry 23 of S.65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself.” (Underline supplied) 21. The Apex Court observed that, the High Court is justified in entertaining a writ petition when no disputed question of facts are involved. In this case also there is admittedly no disputed facts and therefore, I am of the considered opinion that this Court is justified in interfering with the election of the 5th respondent. 22. Moreover, in the judgment dated 11.02.2009 in WP(C) No.3538/2009, this Court entertained a writ petition with similar set of facts. It will be better to extract the above judgment: “The petitioner was a candidate for election to the post of Vice President of the Kadangode Grama Panchayat in the election held on 28.1.2009. There are 17 elected members of the Panchayat and all of them attended the meeting convened for election. In the election conducted one vote was declared as invalid and as a result, both the petitioner as well as the 3rd respondent secured equal number of votes, viz., 8 votes each. Thereafter, the Returning Officer drew lots for deciding the elected candidate. The petitioner's name was drawn first. However, applying Sub Rule 7(c) of the Rule 9 of the Panchayat Raj Act, the Returning Officer eliminated the petitioner from the contest and declared the 3rd respondent as elected and an objection was preferred by the proposer of the petitioner to the Returning Officer. The Returning Officer ruled that it is sub rule 7(c) of the Rule 9 of the Kerala Panchayat Raj (Election of President & Vice President) Rules ("Rules" for short) which is applicable. The petitioner's contention is that what is applicable is sub rule 7(a) of Rule 9 of the Rules and sub rule 7(c) is applicable only in cases covered by sub rule 7(b). As per sub rule 7(a), the person whose name is drawn in the lot is entitled to be declared as elected. 2. I have heard all parties. 3. Sub rule 7 of Rule 9 of the Rules reads thus: “9.The manner of recording of votes, conducting of votes and declaration of result. As per sub rule 7(a), the person whose name is drawn in the lot is entitled to be declared as elected. 2. I have heard all parties. 3. Sub rule 7 of Rule 9 of the Rules reads thus: “9.The manner of recording of votes, conducting of votes and declaration of result. – (1)... xxx xxx xxx xxx (7) After the polling is over, the Returning Officer shall, in the presence of the members, count the ballot papers, declare as to which candidate each member has recorded his vote, then count the votes secured by each candidate and declare the result in the following manner, namely:- (a) If there are only two candidates then, the person who has secured more valid votes shall be declared to have been elected and in the event of both the candidates securing equal numbers of valid votes, lots shall be drawn in the meeting and the person whose name is drawn first shall be declared to have been elected. (aa) In case where there are more than two contesting candidates and if one of the candidates has secured more votes than the aggregate votes secured by all the others candidates together the person who has got more votes shall be declared as elected. (b) If there are more than two contesting candidates and in the first polling no candidate secures more votes than the aggregate votes secured by all the other candidates together, the candidate, who had secured the least number of votes shall be eliminated and the voting shall be continued by eliminating the candidate who secures more votes than those secured by the remaining candidate or candidates together, as the case may be, and the candidate who thus secures more vote shall be declared as elected. (c) if Two or more candidates secure equal number of votes and one of them has to be eliminated under clause (b) then the Returning Officer shall draw lot as to which candidate among the candidates who had secured equal number of votes is to be eliminated and the person whose name is first drawn shall be eliminated." Obviously sub rule 7(b) applies only when there are more than two contesting candidates and in first polling no candidate secures more vote than the aggregate secured by all other candidates together whereas, sub rule 7(a) relates to a situation where there were only two candidates and both candidates secure equal number of valid votes. Therefore, since in this case there were only two candidates, clearly sub rule 7(a) is the one applicable and the Returning Officer has applied sub rule 7(c) wrongly. In the above circumstances, the petitioner is entitled to succeed in this writ petition. Accordingly, the election of the 3rd respondent is set aside and the Returning Officer, viz., 2nd respondent, is directed to complete the election process in accordance with sub rule 7(a) expeditiously. Writ petition is disposed of as above.” 23. Same is the situation in this case also. Therefore, this Court is justified in interfering with the election of the 5th respondent. 24. The upshot of the above discussion is that, this Court has to exercise the jurisdiction under Article 226 of the Constitution of India, in the peculiar facts and circumstances of the case. 25. Therefore, this writ petition is allowed in the following manner: (i) Ext.P2 is quashed to the extent it declares that the 5th respondent is elected to the post of Chairperson of Piravom Municipality. (ii) It is declared that in view of the admitted fact that the petitioner’s name was drawn in the lot by the 2nd respondent, the petitioner is elected as the Chairperson of Piravom Municipality in view of Rule 8(7)(a) of the Kerala Municipality (Election of Chairperson and Deputy Chairperson), Rules 1995. (iii) The 1st and 2nd respondent will declare the petitioner as elected as the Chairperson of Piravom Municipality and do the needful, in accordance with law, forthwith.