Joseph Master v. Kerala State Delimitation Commission 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. 21982 of 2010(W) -------------------------- PETITIONER(S): --------------- MR.JOSEPH MASTER, S/O.ALEX, AGED 61, JOLEX BHAVAN, P.O.CHERUTHURUTHY - 679531. THRISSUR DISTRICT. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.N.AJITH RESPONDENT(S): --------------- 1. KERALA STATE DELIMITATION COMMISSION REPRESENTED BY ITS SECRETARY,TRIVANDRUM-695032. 2. KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, TRIVANDRUM-695032. 3. THE DISTRICT COLLECTOR, THRISSUR DISTRICT - 680003. 4. VALLATHOLE NAGAR GRAMA PANCHAYAT, REPRESNTED BY ITS SECRETARY, CHERUTHURUTHY, THRISSUR DISTRICT 679531. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R1 SRI.P.C.SASIDHARAN FOR R4 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.21982 of 2010-W** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 17th day of August, 2010.** ## **JUDGMENT** The petitioner is aggrieved by the delimitation of wards of Vallathole Nagar Grama Panchayat. So many grounds have been raised in the writ petition with regard to the alleged illegality in the delimitation of wards. Exts.P3 and P4 are the proposals for delimitation and the notice issued by the District Collector. Certain complaints pointing out the defects in Ext.P4 proposal, are detailed in para 4 of the writ petition. Ext.P5 is the further complaint given by the petitioner and Ext.P6 is the complaint given to the enquiry officer. A further complaint was given to the first respondent on 19.3.2010 also. It is pointed out that while the Commission conducts enquiry/inspection of evidence, it is mandatory as per Ext.P2 that the District Collector concerned must be present, whereas during the enquiry on 19.3.2010, neither respondent No.3 nor the enquiry officer was present. 2. The Delimitation Commission has filed a detailed statement and 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 21982/2010 2 3. Shri K. Jayakumar, learned Senior Counsel for the petitioner submitted that there is no bar in considering whether the process of delimitation is defective and in violation of the principles of natural justice. It is pointed out that the decisions of the Apex Court in **N.P. Ponnuswami** **v. Returning Officer, Namakhal Constituency** (AIR 1952 SC 64), and **Indira Nehru Gandhi v. Shri Raj Narain** (AIR 1975 SC 2299) will show that such an exercise by this Court with regard to the process of delimitation, is well accepted. On the issue of the validity of the process undertaken by the Commission, this Court can have a review and the same is not excluded. If at all any bar can be there, the same can only be on the final delimitation order. Reliance is placed on certain other decisions of the Apex Court also. 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 wpc 21982/2010 3 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.” 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.** wpc 21982/2010 4 **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 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) wpc 21982/2010 5 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 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 wpc 21982/2010 6 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 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 then Division wpc 21982/2010 7 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. Of course, the question is whether the Commission has undertaken the process of delimitation in terms of the statutory mandate. Herein, going by the details available, the draft proposal was published inviting objections as per Ext.P3 and parties had submitted various objections which were subjected to enquiry by the enquiry officer also. There was a hearing on the objections. In that view of the matter, there cannot be any allegation of violation of the principles of natural justice as contended by the learned Senior Counsel for the petitioner. wpc 21982/2010 8 12. With regard to the merits of the contentions also, it is explained by the Delimitation Commission and the 4[th] respondent that the total residential houses in the Panchayat as per the 2001 census is 23485. In the additional statement in para 6, a statement showing the number of residential buildings and the assessed population in each ward and the percentage of difference from the average population, has been reproduced. The average population is taken as 1468 and the average number of residential buildings is taken as 355. According to the Commission, the chart provided will show that the population and the number of residential buildings arranged in each ward is strictly adhering to the norms and guidelines issued by the Commission. It is therefore contended that the petitioner's contention that there is huge difference in the number of residential buildings and assessed population in each ward, is without any basis. I find force in the above contention. 13. The allegation that the District Collector nor the enquiry officer were present on 19.3.2010, during the hearing is explained in para 8 of the additional statement. It is explained that the designated enquiry officer and the Secretary of the Grama Panchayat were present on 19.3.2010. Photo copy of the attendance sheet has been produced in support of the above plea. With regard to the absence of the District Collector, it is explained wpc 21982/2010 9 that in view of various responsibilities conferred on the District Collector, he could not be present and the same will not vitiate the hearing. Therefore, it cannot be said that there is any illegality on this score. 14. It is evident from the statement that ten objections were received against the draft proposal and all the objections were considered. Five definite changes were directed by the Commission to the draft proposal. Evidently, this has been done only after considering the objections and hearing the parties. 15. It cannot be said that every objections raised against the delimitation proposal should result in separate orders to be passed by the Commission. Such an exercise is not contemplated in Section 10(2) of the Kerala Panchayat Raj Act also. With regard to Ext.P8 complaint, it is explained that the same was submitted on 13.5.2010, after the last date fixed for submitting objections which was on 11.1.2010. Evidently, the Commission could not have considered the said objection which was submitted beyond the period prescribed by the preliminary notification. Every one of the objections need not result in a fresh proposal, going by the principles stated by the Apex Court in **Association of Residents of MHOW (ROM)'s case** {(2009) 5 SCC 404}. 16. The Commission is expected to finalise the delimitation process wpc 21982/2010 10 after considering various aspects. But at the same time, the parties cannot insist that every one of the objections should be separately considered and separate orders will have to be passed. I find no infirmity in the process adopted by the Commission. The writ petition is dismissed for all the above reasons. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**