Hamsa Kadavan v. State Delimitation Commission, Government of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).No. 21418 of 2010(B) -------------------------- PETITIONER(S): --------------- HAMSA KADAVAN, KADAVAN HOUSE, KAMBALAKKADU P.O., KALPETTA, WAYANAD DT. BY ADV. SRI.M.MUHAMMED SHAFI RESPONDENT(S): --------------- 1. THE CHAIRMAN, STATE DELIMITATION COMMISSION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 695 033. 2. STATE DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF PANCHAYATHS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 5. DISTRICT COLLECTOR, WAYANAD - 673 122. 6. KANIAMBATTA GRAMA PANCHAYATH, KANIAMBATTA P.O., KALPETTA, WAYANAD, REPRESENTED BY ITS SECRETARY 673 124. 7. MR.A.K.PAPPI, (ENQUIRY OFFICER), SENIOR SUPERINTENDENT, INSPECTION AND AUDIT, COLLECTORATE, KALPETTA, WAYANAD DT 673 122. 8. THE DEPUTY COLLECTOR (ELECTIONS), WAYANAD 673 122. ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/8/2010 , THE COURT ON 18/08/2010 DELIVERED THE FOLLOWING: ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 21418 of 2010-B** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 18th day of August, 2010.** ## **JUDGMENT** The petitioner challenges the delimitation of wards of Kaniambatta Grama Panchayat. Earlier, the total number of wards was 17, which was increased as 18, going by the draft proposal published as per Ext.P2. The objections were enquired through the 7[th] respondent and thereafter a hearing was held on 15.2.2010. According to the petitioner, thereafter, the Delimitation Commission, by telephonic instructions, directed the 6[th] respondent to make certain amendments, against which, the petitioner submitted a representation. It is also contended that later also further instructions were given which compelled the Secretary to forward Exts.P4 and P5 replies. Exts.P6 to P8 are also produced to contend that great pressure has been exerted in the matter. Ext.P11 is the final order passed by the Commission. 2. Various grounds have been raised in the writ petition challenging the final order. 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. wpc 21418/2010 2 3. 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.” 4. 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 wpc 21418/2010 3 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. 5. 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 wpc 21418/2010 4 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”. 6. 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]”.** 7. 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. 8. 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 21418/2010 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 21418/2010 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. 9 **.** In the light of the above, the preliminary objections raised by wpc 21418/2010 7 the Commission is sustainable. 10. It is explained in the additional statement that four objections were received including that of the petitioner which were enquired through the Senior Superintendent, Inspection & Auditing, Collectorate, Wayanad who was the designated officer. On the basis of the enquiry report and the remarks thereon by the District Collector, the objectors were personally heard by the Commission on 15.2.2010. Thereafter, the Commission passed orders on 30.4.2010 directing the Secretary of the Grama Panchayat to effect certain changes in the draft proposal. The average population taken for delimitation is 1640 with an average of 422 residential buildings in each ward. 12. The objection raised by the petitioner with regard to ward Nos.11 and 12 is dealt with in para 8 of the additional statement. It is explained that in the enquiry report furnished by the enquiry officer, there was no specific comments on the delinking or retention of the area in question, viz. Hamas Kunnu from proposed ward No.12 to ward No.11. But on the basis of the demand and deposition during the personal hearing the Commission has ordered to delink Kamblakkadu Kunnu from ward No.11 and to include it in ward No.12, since it was found feasible and in accordance with the norms and guidelines. Similarly, in respect of ward No.12 also certain wpc 21418/2010 8 directions were issued by the Commission. It is pointed out that the Commission has taken into account the demand and depositions made during the personal hearing of the objectors along with the recommendations forwarded by the enquiry officer. It is explained that any favourable recommendations in favour of the petitioner at some level of decision making process do not confer any right on the petitioner and the Commission is not tied down by the same. The Commission is entitled to consider the totality of the circumstances. 13. Evidently, therefore, the contention raised by the petitioner cannot be accepted. The Commission is entitled to consider various objections as well as those demands made during the personal hearing. It cannot, therefore, be said that the Commission has acted illegally in the matter. The allegations of political malafides have been denied by the Commission. For all these reasons, I find no merit in the contentions raised by the petitioner. The writ petition is therefore dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**