K. Jayaraj v. Manjeri Municipality 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. 22440 of 2010(D) -------------------------- PETITIONER(S): --------------- K. JAYARAJ, S/O. RAMAN, KELANTHODI, THALATHI PARAMBA, NARUKARA P.O., MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A SMT.A.M.SABEETHA RESPONDENT(S): --------------- 1. MANJERI MUNICIPALITY, REPRESENTED BY SECRETARY, MANJERI, MALAPPURAM DISTRICT. 2. THE DISTRICT COLLECTOR, MALAPPURAM DISTRICT, MALAPPURAM. 3. THE STATE DELIMITATION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. THE STATE ELECTION COMMISSIION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. - ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R3 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R4 SRI.M.P.ASHOK KUMAR FOR R1 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. 22440 of 2010-D** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 17th day of August, 2010.** ## **JUDGMENT** The petitioner is aggrieved by the delimitation of wards of Manjeri Municipality. According to him, unfairly, unrealistically and irrationally the number of wards have been increased from 47 to 50, this year. It is pointed out that the Municipality consists of three villages, viz. Manjeri, Narukara and Payyanad. In Narukara village three wards have been increased without touching the number of wards in Manjeri and Payyanad villages. Ext.P1 is the draft proposal to which objections have been submitted by the petitioner as per Ext.P2. According to the petitioner, the enquiry officer found that all the objections raised by the petitioner are reasonable. Ext.P4 is the copy of the enquiry report. Ext.P5 is the further report submitted by the Secretary of the Municipality suggesting certain changes in the report made by the enquiry officer. It is also contended that in respect of Manjeri and Payyanad villages also, the boundaries have been changed irrationally. It is further contended that the population is assessed based on the number of houses, which cannot be justified and that many of the suggestions made by the petitioner have not been considered at all. wpc 22440/2010 2 2. The Delimitation Commission has filed a detailed statement. In the said statement, a preliminary objection has been raised with regard to the maintainability of the writ petition relying upon Article 243-ZG(a) of the Constitution of India. 3. First I will consider the preliminary objection. Article 243-ZG(a) provides as follows: -- **“243ZG. Bar to interfere by courts in electoral matters** Notwithstanding anything in this Constitution,-- - (a) 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 243ZF shall not be called in question in any court.” Section 69(2A) of the Kerala Municipality Act, 1994 as amended by Kerala Municipality (Amendment) Ordinance, 2010 reads as follows: “Every order with regard to the division of ward and determination of their boundaries issued under this section by the Delimitation Commission shall be published in the gazette and it shall have the force of law.” Section 70 of the Act provides that the validity of any law relating to the delimitation of wards or allotment of seats to such wards shall not be called in question in any court. wpc 22440/2010 3 4. 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 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”. In **Anugrah Narain Singh v. State of U.P [(1996) 6 SCC 303]** Article 243-ZG itself was considered, and it was held _inter alia_ , that the bar wpc 22440/2010 4 of judicial review will apply. 5. 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]”.** 6. 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. 7. Another decision to be noticed is a 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 wpc 22440/2010 5 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 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 wpc 22440/2010 6 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. 8. In the light of the above, the preliminary objections raised by the Commission is sustainable. 9. Evidently, the Commission has made the delimitation based on the average population and other figures regarding the number of residential houses in each ward. It cannot therefore be said to be an illegal exercise wpc 22440/2010 7 done by the Commission. It is not as if that every one of the suggestions made by the petitioner should be separately considered and a separate order has to be passed. The Commission will have to consider various aspects pointed out by the parties concerned who have filed the objections, reports of enquiry as well as the suggestions which may be raised during the hearing. For all these reasons, I find no ground to interfere with the order issued by the Delimitation Commission. Accordingly the writ petition is dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**