Bhaskaran K. v. State Delimitation Commission Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932** **WP(C).No. 21676 of 2010(H)** **----------------------------------------** ## **PETITIONER(S):** **------------------------** **BHASKARAN. K AGED 49 YEARS, S/O.PONNAN, PALAKKAPARAMBU HOUSE, ARIMBRA PO, MALAPPURAM.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **RESPONDENT(S):** **---------------------------** **1. THE STATE DELIMITATION COMMISSION KERALA, REPRESENTED BY ITS SECRETARY OBSERVATORY LANE, THIRUVANANTHAPURAM- 695 001** **2. THE STATE ELECTION COMMISSION KERALA, REPRESENTED BY ITS SECRETARY SECRETARY, THIRUVANANTHAPURAM- 695 001** **3. THE DISTRICT COLLECTOR, CIVIL STATION MALAPPURAM** **4. THE SECRETARY MORAYUR GRAMA PANCHAYAT, MALAPPURAM DISTRICT** **R3 BY SPL. GOVT. PLEADER MR.C.M. SURESH BABU. R1 & R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON 30/08/2010 DELIVERED THE FOLLOWING:** **rs.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.21676 of 2010-H** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 30th day of August, 2010.** ## **JUDGMENT** The petitioner is aggrieved by the delimitation of wards of Morayur Grama Panchayat. The objection submitted by the petitioner against the proposal is produced as Ext.P2, wherein it was contended that the boundaries fixed with respect to the wards are not correct and the boundaries will not tally with the map prepared by the respondents. Even in respect of certain wards it is pointed out that houses beyond the wards were also included in the wards without any justification. 2. A hearing was conducted on 15.3.2010 and Ext.P3 is the order passed by the Delimitation Commission, wherein, according to the petitioner, none of the objections raised by him were separately considered. Mainly it is contended that geographical boundaries of the wards were not taken into consideration and various details have been made mention of in para 5 of the writ petition. Accordingly, it is contended that the orders are illegal, irregular and arbitrary. 3. On behalf of the Delimitation Commission, a Statement and an additional statement have been filed. In the statement a preliminary objection has been raised with regard to the maintainability of the writ wpc 21676/2010 2 petition in the light of the bar of judicial review as 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 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. wpc 21676/2010 3 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.” 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 wpc 21676/2010 4 327 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 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 wpc 21676/2010 5 unamended provision of the Panchayat Raj Act, 1994, namely S.10A itself. The challenge was against the validity of Section 10A. Section 10A 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 wpc 21676/2010 6 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 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. wpc 21676/2010 7 11. In the additional statement various contentions raised by the petitioner, have been met. It is explained that the names of the boundaries are not noted or incorporated in the map since the map of the grama panchayat was prepared in A4 size paper which is hardly sufficient to enter the names of all the boundaries. The boundaries of each ward are shown in Annexure 5 attached to the draft proposal as well as in the final delimitation order. Accordingly it is explained that the boundaries fixed for each ward are natural boundaries and will tally with the map of the Grama Panchayat. The contention that some houses beyond the limits of the ward have been included, is met in para 8 of the additional statement. It is mentioned that the details of buildings included in each ward has been specifically narrated in Annexure 2A attached to the draft proposal as well as in Annexure 2A to the final delimitation order. Therein, the details of existing wards and the door numbers of each building are specifically mentioned. Therefore, it is contended that the said objections are not correct. As is evident from the delimitation order and the additional statement, various details of each wards are made mention of including the boundaries as well as the number of houses included. Therefore, it is not difficult to find out from the delimitation order, the details in respect of each wards. The enquiry report submitted on the basis of the objections raised by the petitioner, has also wpc 21676/2010 8 been made available. The enquiry officer was of the view that the complaints about the natural boundaries happened to be raised for the reason that the petitioner has based his objections on the basis of local names of certain boundaries. It is further pointed out that the discrepancies pointed out by the enquiry officer have been corrected. 12. It is evident that the delimitation process has been finalised after conducting enquiry on the objections submitted including that of the petitioner. It cannot be expected that all the objections should be dealt with in the delimitation order and separate proceedings will have to be issued by the Commission in that manner. Evidently, the Commission has indulged in the process of delimitation keeping in mind the various aspects collected during the enquiry as well as during the personal hearing. For all these reasons, I find that no interference is called for in the delimitation order and the writ petition is accordingly dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**