D. Geethakrishnan v. State Election Commission, Directorate of Urban Affairs, Kollam Corporation and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM a PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 6TH DAY OF OCTOBER 2015/14TH ASWINA, 1937 ## WP(C).No. 29749 of 2015 (P) ---------------------------- PETITIONER(S): ---------------- ## D. GEETHAKRISHNAN, AGED 38 YEARS S/O. DEVA KUMAR, THUNDIL BHAVAN, THIRUMULLAVARAM P.O. KOLLAM - 12. BY ADVS.SRI.S.ABHILASH SRI.PRATHEESH.P SMT.S.SEETHA SMT.RENY ANTO SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): ------------------- 1. THE STATE ELECTION COMMISSION CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM P.O. THIRUVANANTHAPURAM - 695 034. 2. THE DIRECTOR DIRECTORATE OF URBAN AFFAIRS, PUBLIC OFFICE BUILDING MUSEUM P.O., THIRUVANANTHAPURAM - 695 033. 3. KOLLAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING KOLLAM - 691 001. ADDL. 4. SURESH BABU.S., AGED 63, S/O.SUKUMARAN EX-COUNCILOR, SOBHA BHAVAN, MUNDAKKAL WEST, KOLLAM. ADDL. 5. ANILKUMAR.C.V., AGED 43, S/O.VIJAYAN COUNCILOR-CANTONMENT DIVISION, SRUTHI, THEKKEVILA B-III-TRA THEKKEVILA, P.O., KOLLAM. - (ADDL.R4 & R5 IMPLEADED AS PER ORDER DATED 6.10.2015 IN - I.A.NO.14326 OF 2015) R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION R2 BY GOVERNMENT PLEADER SRI.BOBY JOHN PULIKKAPARAMBIL. R3 BY SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM CORPORATION. R4 & R5 BY ADV. SRI.K.SUBHASH CHANDRA BOSE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 29749 of 2015 (P) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- - P1 - THE COPY OF THE RELEVANT PAGE THE MANUAL PUBLISHED FOR ELECTION 2015. - P2 - THE COPY OF THE REPRESENTATION DT. 23.9.2015 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - P3 - THE COPY OF THE WARDS FINALIZED BY THE 2ND RESPONDENT FOR RESERVATION CATEGORY. RESPONDENT(S)' EXHIBITS : NIL. ----------------------------- //TRUE COPY// ## P.S. TO JUDGE. **==> picture [380 x 85] intentionally omitted <==** **==> picture [136 x 15] intentionally omitted <==** The issue pertains to the reservation of the wards in the Corporation of Kollam for the ensuing election to the local bodies in terms of the Kerala Municipality Act, 1994 ['the Act' for short]. Article 243 T of the Constitution of India provides for the reservation of seats for the Scheduled Castes and Scheduled Tribes including women in every Municipality. The number of seats so reserved shall be proportionate to the population of the Scheduled Castes and Scheduled Tribes in the Municipal area when compared to the total population of that area. The State Government has fixed the number of seats to be reserved for Scheduled Castes in the category of women in the Corporation of Kollam as 2 only. Seats have also been reserved for women to the extent of 50% of the total number including those belonging to Scheduled Castes and Scheduled Tribes under the Act. Both Article 243 T of the Constitution of India as well as Rule 6 of the Act speak of reservation by 'rotation' to the different constituencies (wards) in a Municipality. How best the W.P (C) No.29749 of 2015 2 wards in the Corporation of Kollam could be ear-marked for reservation by rotation in accordance with the constitutional and statutory mandate is the question ? 2. I heard Mr.S.Abhilash, Advocate on behalf of the petitioner, Mr.Murali Purushothaman, Standing Counsel on behalf of the State Election Commission and Mr.Boby John Pulikkaparambil, Government Pleader. I also heard Mr.M.K.Chandramohan Das, Standing Counsel for the Corporation of Kollam and Mr.K.Subash Chandra Bose, Advocate for the additional respondents. 3. There are altogether 55 constituencies (wards) in the Corporation of Kollam including the Thrikkadavur Panchayat annexed to it by bifurcation to which the election has to be conducted. 50% of the total number of 55 seats works out to 27 ½ which shall be fixed to the next higher integer of 28 in view of the fraction of half (½). That the figure shall be fixed to the next higher integer in the case of fraction is discernible from Sections 6(6) and 6(7) of the Act which gives no room for any doubt. The reservation has to be effected by rotation to different constituencies obviously to prevent successive W.P (C) No.29749 of 2015 3 reservation to the same constituency. Such is the intention can well be gathered as held in Venugopal V.R. And another v. Secretary, Tripunithura Municipality and others (2010 (4) KHC 47). Thus a reserved constituency shall not continue to be such and a general constituency can be converted to a reserved constituency for the next election. 4. Sub Sections (6), (7), (8) and (9) of Section 6 of the Act which have a bearing on this case is extracted below:- 6. Constitution of Council:- (1) x x x x **==> picture [87 x 12] intentionally omitted <==** **==> picture [87 x 12] intentionally omitted <==** **==> picture [87 x 12] intentionally omitted <==** **==> picture [87 x 12] intentionally omitted <==** (6) Fifty percent (in the case of fraction, it shall be fixed to the next higher integer) of the total number of of seats reserved under sub-section (5) shall be reserved for women belonging to the Scheduled Castes, or as the case may be, the Scheduled Tribes: Provided that where the number of seats reserved for the Scheduled Castes or as the case may be, the Scheduled Tribes under sub-section (5) is only W.P (C) No.29749 of 2015 4 one, that seat need not be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (7) Fifty per cent (in the case of fraction, it shall be fixed to the next higher integer) (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved by the Government for women and such seats may be allotted by rotation to different wards in a Municipality as the State Election Commission or an officer authorised by it may, by notification in the Gazette, determine for each general election. (8) Nothing contained in sub-sections (5) to (7) shall be deemed to prvent persons belonging to the Scheduled Castes, Scheduled Tribes or Women from being a candidate to the election to the unreserved seats in a Municipality. (9) The officer authorised in this behalf by the State Election Commission shall, by draw of lots, determine the wards to which seats reserved for Scheduled Castes and Scheduled Tribes under sub-section (5) and for Women W.P (C) No.29749 of 2015 5 under sub-sections (6) and (7) are to be allotted by rotation at such time and on such date and at such place as may be notified by the Commission. 5. There were 24 general constituencies (wards) in the Corporation of Kollam during the last election which was available for rotation as reserved constituencies for this election. Still there was a deficit of 4 constituencies to make up the figure of 28 constituencies to effect reservation by rotation as per the constitutional and statutory mandate. The 4 constituencies have necessarily to be carved out from the remaining 31 constituencies which ofcourse were reserved constituencies during the last election. Successive reservation in these 4 constituencies was inevitable as otherwise the reservation for women including those belonging to the Scheduled Castes and Scheduled Tribes cannot be provided. The electoral officer has thought it fit to choose the 4 constituencies by draw of lots which is a permissible exercise under Section 6(9) of the Act. It so happened that Ward No.12 (Thevally Ward) which was a reserved constituency for the last election was chosen W.P (C) No.29749 of 2015 6 as one among the 4 constituencies by draw of lots. 6. The contention of the petitioner is two fold in that all the 28 constituencies should have been chosen by draw of lots and that there cannot be successive reservation in Ward No.12. The concept of reservation by rotation can be given its maximum effect only if the general constituencies for the previous election are rotated to reserved constituencies. The electoral officer authorised by the State Election Commission has found that there is a deficit of 4 reserved constituencies even after rotation . This has prompted the electoral officer to choose the 4 constituencies from amongst the reserved constituencies of the previous election by draw of lots. The reservation to the extent of 28 seats can be adhered to only if 4 seats in addition to the 24 rotated seats are culled out which was chosen by draw of lots. Thevally, Sakthikulagara, Palathara and Udayamarthandapuram happened to be the 4 wards so chosen by draw of lots by the electoral officer. The successive reservation in these 4 constituencies was inevitable in order to maintain the reservation of 50% of the total number of W.P (C) No.29749 of 2015 7 seats for women including Scheduled Castes. 7. There is a reservoir of power in the State Election Commission to act for the avowed purpose of having a free and fair election by giving effect to the concept of reservation by rotation. The word 'election' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. The Constitution of India particularly Article 243-T thereof leaves scope for exercise of residuary power by the State Election Commission in its own right. Infinite situations may emerge from time to time in a large democracy and every contingency cannot be foreseen or anticipated by the enacted laws or the rules. The Election Commission can fill the vacuum till there is a legislation on the subject as held in Union of India v. Association for Democratic Reforms [AIR 2002 SC 2112]. It was observed therein in the context of Article 324 of the Constitution of India relating to the election to the Parliament and the Legislative Assembly as follows:- “The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct W.P (C) No.29749 of 2015 8 of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the constitution in the infinite of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary direction, commission can fill the vacuum till there is legislation on the subject.” The State Election Commission was well within its right to limit the draw of lots to the remaining 31 constituencies after rotating the 24 general W.P (C) No.29749 of 2015 9 constituencies of the previous election. The choice of the 4 constituencies from out of the remaining 31 constituencies by draw of lots to make up the reservation for 28 constituencies is legal. The State Election Commission cannot be castigated for having adopted such a course to tide over the situation not foreseen by the legislature. Successive reservation in the same constituency has been brought down to a minimal by rotating general constituencies for the last election to reserved constituencies for this election. 8. It is trite law that the right to contest in an election is only a statutory right and not a fundamental right and none of the rights of the petitioner have been infringed. The petitioner who claims to be a resident of Thevally Ward which now stands reserved for women is free to contest the election from any other general constituency. The action of the electoral officer authorised by the State Election Commission in choosing the Thevally Ward as a reserved constituency cannot be said to be illegal. The petitioner has failed to make out a case for interference at this juncture even though the W.P (C) No.29749 of 2015 10 constitutional bar under Article 243-ZG of the Constitution of India may not operate. This is because the date of election for the local bodies is yet to be notified and the jurisdiction under Article 226 of the Constitution of India is not now barred. The Writ Petition fails. Dismissed. No costs. Sd/V.CHITAMBARESH, Judge. nj.