A. Kumaran v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 22816 of 2010(B) -------------------------- PETITIONER(S): --------------- A.KUMARAN, MEMBER, PATTANCHERY GRAMA PANCHAYATH (SPL.GRADE), PATTANCHERY P.O., PALAKKAD. BY ADV. SRI.K.ANAND RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, PALAKKAD. 4. PATTANCHERY GRAMA PANCHAYATH (SPL.GRADE) (PATTANCHERY P.O., PALAKKAD, REPRESENTED BY ITS SECRETARY). ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R2 R3 BY G.P. SHRI K. RAMESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON 17/08/2010 DELIVERED THE FOLLOWING: ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 22816 of 2010-B** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 17th day of August, 2010.** ## **JUDGMENT** The petitioner is aggrieved by the delimitation of 4[th] respondent Grama Panchayat. He is an elected member from the present ward No.XIII of the Panchayat. The total number of wards have been fixed as 16 now. Ext.P1 is the draft publication showing the division of wards. 2. According to the petitioner, there was no objection to include building Nos.46 to 460 in the existing Muttuchira constituency and the total number of residential houses is shown as 381. When the final order was published as per Ext.P2, the changes have been effected. It is pointed out that 100 voters of the existing ward No.XIII have been shifted to ward No.XIV, even though no objection was there to the draft proposal. 3. The Delimitation Commission has filed a detailed statement as well as an additional statement. In the detailed statement, a preliminary objection has been raised relying upon the bar of judicial review provided under Article 243-O(a) of the Constitution of India. 4. In the preliminary objections, it is pointed out that in the light of Article 243-O (a) of the Constitution of India, there is a bar for wpc 22816/2010 2 interference by courts in respect of delimitation of constituencies. Article 243-O (a) states as follows:- Notwithstanding anything in this Constitution-- “the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any court.” 5. Section 10 of the Kerala Panchayat Raj Act provides detailed provisions for the delimitation of constituencies of Panchayats. We are concerned with Section 10(3) and 10(3A) which are extracted below:- “S.10(3) An order made by the State Election Commission or the Officer authorised by it or the Delimitation Commission shall not be called in question in any court of law. S.10(3A) Every order issued by the Delimitation Commission with regard to the delimitation of constituencies under this Section shall be published in the Gazette and it shall have the force of law.” wpc 22816/2010 3 Going by Section 10(3A), once the delimitation order is published in the Gazette, it shall have the force of law and, therefore, the learned Standing Counsel for the Delimitation Commission submitted that the same will attract the bar under Article 243-O (a) of the Constitution of India. Reliance is placed on various decisions of the Apex Court and this Court. 6. The issue is no longer _res integra_ in the light of various decisions of the Apex Court and this Court viz., **Meghraj Kothari v. Delimitation Commission and others [AIR 1967 SC 669], Chief Electoral Officer v. Sunny Joseph [2005 (4) KLT 599], Satyan V.V v. Election Commission of India and others [(2008) 4 KHC 245]** wherein it was held that Article 329 is a bar for judicial review over the orders passed by the Delimitation Commission. In regard to the delimitation of wards of Panchayats also, the issue is governed by the decision in **State of U.P v. Pradhan Singh Kshettra Samiti [1995 (Supp.) (2) SCC 305]** wherein at paragraph (45), the bar under Article 243-O (a) was considered and it was held that “if we read Article 243-C, 243-K and 243-O in the place of Article 327 and Section 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the Panchayat area nor the constituencies in the said areas wpc 22816/2010 4 and allotment of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objection were invited and no hearing was given”. 7. Recently, in **Chirayinkeezhu A.Babu v. Delimitation Commission and others [2010 (1) KHC 953]** the same aspect was considered by me and it was held in paragraph (27) that “Article 329(a) contains an absolute bar for this Court to consider the challenge against the order under the Delimitation Act, which is well settled by a decision of the Constitution Bench of the Apex Court in **Meghraj Kothari's case [AIR 1967 SC 669]”.** 8. In fact, in **Association of Residents of MHOW (ROM) and another v. Delimitation Commission of India and others [(2009) 5 SCC 404]** also the above legal position has been reiterated. 9. Another decision to be noticed is the decision of a Division Bench of this Court in **Kunhabdulla v. State of Kerala [2000 (3) KLT 45].** The legal position was examined by the Bench in the light of the unamended provision of the Panchayat Raj Act, 1994, namely S.10A itself. The challenge was against the validity of Section 10A. Section 10A wpc 22816/2010 5 conferred power of review on the Election Commission on an order passed under Section 10, by the authorised officer delimiting the wards. Therein, while examining the said question, this Court noticed that the provisions enable the District Collector to delimit the constituencies and Section 10A of the Panchayat Raj Act confers the power of review on the Election Commission. While considering these aspects, it was held in paragraph (5) that “Article 243-O(a) which bars the jurisdiction of any court to consider the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies will not get attracted where sweeping changes are made by the Election Commission to the delimitation order duly passed and published by the District Collector after hearing objections etc., under the guise of the power of review conferred on him under Section 10A of the Act when the whole election process is yet to begin and there is ample time left to undo the harm done by the former. In such a situation, this Court can exercise jurisdiction under Article 226 of the Constitution at least for the limited purpose of testing the constitutional validity of the provision (S.10A) under which the Election Commission has passed the impugned orders varying the original order of the District Collector without going into the merits of the order itself.” Apart from the same, this Court distinguished the **Meghraj Kothari's case [AIR 1967 SC** wpc 22816/2010 6 **669]** on the view that there is no provision in S.10A that the order passed under Section 10A by the Election Commission will have the force of law when published in the Gazette and, therefore, it will not be law for the purpose of Article 243-O. Accordingly, it was held in paragraph (7) that bar under Article 243-O(a) will not be applicable. But in the light of the Judgments of the Apex Court noticed above and that of the Division Benches referred to above, the dictum laid in **Kunhabdulla's case [2000 (3) KLT 45]** cannot be applied on all fours to the situation pointed out herein. Now Section 10(3A) has been added making it clear that on publication in the Gazette the order of delimitation will have the force of law. Once the notification is published in the Gazette, then going by the decision of the Apex Court, the bar applies, as it will be the law for the purpose of Article 243-O(a) and the non-obstante clause therein is important and becomes operative. Therefore, the said decision is clearly distinguishable on the facts of the said cases and the legal position laid down by the various decisions of the Apex Court. **10.** In the light of the above, the preliminary objections raised by the Commission is sustainable. 11. In the additional statement it is explained that only one objection wpc 22816/2010 7 was received which was put in by one Shri R. Sivaprasad, which was enquired through the District Labour Officer, Palakkad who was the designated enquiry officer. On the basis of the enquiry report and the remarks thereon by the District Collector, the objector was personally heard by the Commission on 17.3.2010 and thereafter a final order was passed. 12. It is pointed out that the petitioner did not submit any objection on the delimitation proposal. The details of buildings included in ward No.XIII have been given in para 6 of the statement along with its boundaries. The position of ward No.XIII in the final order is also explained in the statement. It is further pointed out that there is no change in respect of the boundaries shown in the draft proposal. It is further explained that building Nos.291 to 318 of ward No.XIII has been excluded from existing Muttuchira constituency in deviation from Ext.P1 in the final order. The Secretary of the Grama Panchayat has stated that 28 buildings in question which were excluded from ward No.XIII are included in ward No.XIV, since the buildings in question come within the boundary of ward No.XIV. In ward No.XIII, 381 residential buildings were included with an assessed population of 1560, whereas in ward No.XIV, Kaduchira there were 358 residential buildings with an assessed population of 1466. Going by the final order, in ward No.XIII the number of residential buildings wpc 22816/2010 8 included are 390 with an assessed population of 1579 and in ward No.XIV, the same is 358 and 1449 respectively. It is explained that even now the average population of ward No.XIII is far below from that of ward No.XIV. 13. Evidently, 28 buildings were included in ward No.XIV, since they come within the boundaries of the said ward. Therefore, the same is not illegal as contended by the learned counsel for the petitioner. The buildings which are coming within the boundaries have been included in ward Nos.XIII and XIV. In that view of the matter, as the natural boundaries have been maintained, no objection can be raised against the said exercise done by the Commission. For all these reasons, the writ petition is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**