M.K. Nanu v. State Delimitation Commission & Others (W.P.C. Nos. 21793/2010-Y; 21816/2010-B; 23641/2010-E)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932** **WP(C).No. 21793 of 2010(Y)** **-----------------------------------------** ## **PETITIONER(S):** **-------------------------** **M.K.NANU, S/O. CHIKKINI,** **AGED 51 YEARS, MANNOLITHAZHAKUNI, KADAMERI POST, VADAKKARA, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.V.SURENDRANATH, SMT.BINDUMOL JOSEPH, SRI.B.S.SYAMANTHAK.** **RESPONDENT(S):** **---------------------------** **1. STATE DE-LIMITATION COMMISSION, THIRUVANANTHAPURAM-1, REPRESENTED BY SECRETARY.** **2. KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 032.** **3. DISTRICT COLLECTOR, KOZHIKODE-673 001.** **4. DEPUTY TAHSILDAR, TALUK OFFICE, VADAKKARA KOZHIKODE-673 101.** **5. TAHSILDAR, TALUK OFFICE, VADAKKARA KOZHIKODE-673 101.** **6. THE SECRETARY, AYANCHERY GRAMA PANCHAYATH, VADAKKARA KOZHIKODE DISTRICT-6731 01.** - ***ADDL.R7 & R8 IMPLEADED:** **R7. N.K.GOVINDAN MASTER, S/O.RAMA KURUP, KURUNGOTHU HOUSE, PONMERIPARAMBIL PO., VILLIAPPALY (VIA), VADAKARA, KOZHIKODE, PIN - 673 542.** **..2/-** **Kss** **..2....** ## **WPC.NO.21793/2010 Y** *** ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 16/08/2010 IN I.A.NO.10075/2010)** ****R8. T.B.ADBUL MANAF, AGED 35 YEARS, THAZHE BALATHIL HOUSE, PONMERY PARAMBIL P.O., VILLIAPPALLY, KOZHIKODE (DT).** **(**ADDL.R8 IS IMPLEADED AS PER ORDER DTD. 16/08/2010 IN I.A.NO.10117/2010)** **R1 & R2 BY ADV.SRI.MURALI PURUSHOTHAMAN, SC,DELIMITATION & KSE COMMN. R3 TO R5 BY GOVERNMENT PLEADER SRI. K.RAMESH ADDL. R7 BY ADVS. SRI.C.DILIP, SMT.P.A.SHEEJA. ADDL. R8 BY ADV.SRI.J.ABHILASH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2010 ALONG WITH WPC.NO.21816 OF 2010 AND WPC. NO.23641 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **T.R. RAMACHANDRAN NAIR, J.** **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.21793/2010-Y, 21816/2010-B & 23641/2010-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of August, 2010** ## **J U D G M E N T** ## **“ ” C.R.** These writ petitions are concerned with the challenge against delimitation of wards of various Panchayats. 2. In W.P.(C).No.21793/2010, the petitioner is the former President of Ayanchery Grama Panchayat. Ext.P1 is the guidelines published by the Delimitation Commission and Ext.P2 is the draft delimitation proposal inviting objections and suggestions. According to the petitioner, the same is illegal and arbitrary. The petitioner submitted detailed objections and Ext.P20 is the final order delimiting the constituencies which is under challenge in the writ petition. 3. In W.P.(C).No.21816/2010, the delimitation of Nedumpana Grama Panchayat is under challenge by the petitioners and Ext.P7 is the final order passed by the Commission. 4. In W.P.(C).No.23641/2010, the challenge is in respect of delimitation of Kadamboor Grama Panchayat and Ext.P4 is the final order passed by the Commission. 5. In these writ petitions, the learned Standing Counsel for the first respondent has filed preliminary **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:2:- objections by way of a detailed statement as well as additional statements on the merits of the contentions of the parties also. 6. 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. 7. Article 243-O (a) states as follows:Notwithstanding anything in this Constitution-- **==> picture [289 x 11] intentionally omitted <==** 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.” 8. 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. ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -: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. 9. With regard to the Delimitation Commission Act, 1962, the Constitution Bench of the Apex Court in **Meghraj** ## **Kothari v. Delimitation Commission and others [AIR 1967 SC** **669]** took the view that upon publication in the Gazette of India, the order of delimitation shall have the force of law and is not liable to be called in question and matters can no longer be re-agitated in any Court. In fact, in various subsequent decisions of the Apex Court, this decision has been relied on. In **Indira Nehru Gandhi v. Shri Raj Narain [AIR 1975 SC 2299]** it was held that Judicial Review cannot be considered to be a part of the ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:4:- basic structure of the Constitution while considering the bar under Article 329(a). It was held that the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. The exception regarding the bar of judicial review contained in Article 329(a) was noticed by the Apex Court in **L.Chandra Kumar v. Union of India [(1997) 3 SCC 261]** . All these decisions were considered by a Division Bench of this Court in **Chief Electoral Officer v. Sunny Joseph [2005** **(4) KLT 599]** and it was held in paragraph (11) and (14) as follows:- **==> picture [290 x 11] intentionally omitted <==** election for membership of the Parliament the framers of the Constitution had left the decision to the judgment of the executive. Arts.327 and 328 give power to the Parliament and the State legislatures to provide by law for all matters relating to elections to the respective legislatures including the preparation of electoral rolls and the delimitation of constituencies. By Art.329(a) the validity of any law relating to the delimitation of constituencies or the ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:5:- allotment of seats to such constituencies cannot be called in question in any Court. The difference in the phraseology used in Art.329(a) and (b) may give some room for challenging the orders passed under Art.329 (b) under Art.226 of the Constitution of India on certain limited grounds but not the orders relating to delimitation of constituencies which fall under Art.329(a). The words 'shall not be called in question' are absent in Art.329(b) but very much present in Art.329(a). 10. Another Division Bench of this Court reiterated the same decision in **Satyan V.V v. Election Commission of India and others [(2008) 4 KHC 245]** after relying upon the decision in **Sunny Joseph's case [2005 (4) KLT 599] (** _**supra)**_ . The Apex Court had occasion to consider the provisions of Part IXA of the Constitution of India which deals with the Municipalities itself in **Anugrah Narain Singh and another** **v. State of U.P and others [(1996) 6 SCC 303]** and there it was held in paragraphs (11), (12), (14), (35) and (6) as follows:- ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:6:- “In terms of Article 243-ZG of the Constitution there is complete and absolute bar in considering any matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any court. No election to a municipality can be questioned except by an election petition.” ## 11. In **State of U.P v. Pradhan Singh Kshettra Samiti** **[1995 (Supp.) (2) SCC 305]** in 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 ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:7:- delimitation, no objection were invited and no hearing was given”. 12. 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]”.** 13. The learned counsel for the petitioners relied upon the decision of the Division Bench of this Court in ## **Kunhabdulla v. State of Kerala [2000 (3) KLT 45]** wherein it was held that the the jurisdiction of the High Court under Article 226 is not excluded by virtue of the bar created under Article 243-O(a). 14. 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 ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:8:- 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 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 ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:9:- 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 nonobstante 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. ## 15. 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. ## **W.P.(C). Nos.21793/2010, 21816/2010 & 23641/2010** -:10:- 16. In the light of the above, the preliminary objections raised by the Commission is sustainable. One of the points argued by the learned counsel for the petitioners is that the publication in the Gazette was not fully made and, therefore, the preliminary objections may not be sustainable. It is now submitted by the learned Standing Counsel for the Commission that the entire delimitation orders have been duly published in the Gazette dated 30/06/2010. Therefore, these writ petitions are dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ms