Mohammed Kutty Haji and Others v. State Election Commission, Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932** ## **WP(C).No. 18801 of 2010(A)** **----------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. MOHAMMED KUTTY HAJI, PATTASSERY HOUSE KAKKADAMPURAM, A.R.NAGAR P.O., MALAPPURAM 676305.** **2. ASLAM K.P.KOOLIPPULAKKAL HOUSE, KUTTOOR NORTH P.O., MALAPPURAM.** **3. K.P.M.ANEES, (ADVOCATE) KALLIVALAPPIL HOUSE, KUTTOOR NORTH P.O. MALAPPURAM.** **BY ADV. SRI.M.K.CHANDRA MOHANDAS** ## **RESPONDENT(S):** **-------------------------** **1. THE STATE ELECTION COMMISSION, KERALA (THROUGH) IT'S SECRETARY, THIRUVANANTHAPURAM.** **2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **3. THE DELIMITATION COMMISSION, (THROUGH) ITS' SECRETARY, T.C.14/764(4), OBSERVATORY LINE, MUSEUM P.O., THIRUVANANTHAPURAM.** **4. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM.** **5. THE SECRETARY, VENGARA GRAMA PANCHAYAT, VENGARA, MALAPPURAM.** **6. THE DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM.** **R1 & R3 BY ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATION R2 , R4 & R6 BY GOVT. PLEADER SMT.N.SUDHADEVI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, ALONG WITH WPC. NO. 21098 OF 2010 THE COURT ON 16/07/2010 DELIVERED THE FOLLOWING:** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.18801/2010-A & 21098/2010-J** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 16th day of July, 2010.** ## **JUDGMENT** The petitioners herein are aggrieved by the proceedings issued by the Delimitation Commission whereby the order passed by the Commission as per Ext.P8 delimiting the constituencies, has been varied. 2. The draft proposal was published by the Commission on 21.12.2009 calling for suggestions and objections. We are concerned with Ward Nos.1 and 2 of Vengara Grama Panchayat. Ward No.1 is named as Kolappuram East and Ward No.2 is named as Kuttoor North. The Secretary of the Panchayat gave his report in the matter and accordingly the draft was published. Certain objections have been filed by the petitioners and other interested parties and Ext.P4 is the copy of the objections and suggestions submitted by the first petitioner. Ext.P5 is the objections and suggestions submitted by petitioners 2 and 3. Ext.P6 is an additional objection/suggestion made by the first petitioner. Ext.P7 is the objection/suggestion submitted by the elected member of the first ward. 3. After considering the suggestions/objections and after hearing the parties, the Delimitation Commission as per Ext.P8, ordered that building wpc 18801 & 21098 of 2010 2 Nos.440 to 514 which are included in Ward No.1 are to be included in Ward No.2 and the geographical boundary be accordingly varied. This order was passed by the Commission after conducting enquiry through the District Collector and after hearing the objectors on 15.3.2010. Accordingly, in Ext.P8 a direction was issued to the Secretary of the Grama Panchayat to forward the details showing the division of wards along with the maps to the Delimitation Commission before 8.6.2010, through the District Collector. 4. Thereafter, by Ext.P9, a single line order was passed by the Commission on 9.6.2010 stating that the direction in Ext.P8 stands cancelled. This is under attack in the writ petitions. 5. When W.P.(C) No.18801/2010 came up for hearing on 24.6.2010, learned Standing Counsel for the Commission submitted that the Commission is prepared to offer a hearing to the petitioners. After conducting a hearing, fresh proceedings have been issued by the Commission as per Ext.P11 produced in W.P.(C) No.21098/2010 upholding Ext.P9 itself. This is under attack in W.P.(C) No.21098/2010. 6. Heard learned counsel for the petitioners and the learned Standing Counsel appearing for the Delimitation Commission. 7. Learned counsel for the petitioners submitted that the Commission wpc 18801 & 21098 of 2010 3 has no power to receive any fresh objection after the last date fixed for receipt of objections, in the light of the general guidelines issued by the Commission itself and Section 10(2) of the Act. It is evident that they have received a fresh objection/suggestion on 8.6.2010, long after Ext.P8 order dated 30.4.2010 was issued. Without anything more, on the next day itself, i.e. Ext.P9 order has been passed cancelling the direction in Ext.P8. If at all there is any power to the Commission, it is only to correct a printing mistake or error arising from an inadvertent slip or omission under Section 11 of the Kerala Panchayat Raj Act. It is also submitted that the Commission has acted with undue haste in passing Ext.P9. Reliance is placed on the decisions of the Apex Court in **Election Commission of India v. Mohd. Abdul Ghani and others** {(1995) 6 SCC 721}, that of a Division Bench of this Court in **Kunhabdulla and others v. State of Kerala and others** (2000 (2) KLJ 709), another decision of this Court in **Chirayinkeezhu A. Babu v. Delimitation Commission and others** (2010 (2) KLT 957 = 2010 (1) KHC 953) and that of the Madhya Pradesh High Court in the decision reported in **Association of the Resident of MHOW v. Delimitation Commission of India** (AIR 2008 MP 236). 8. To appreciate the legal arguments, the following facts are relevant. wpc 18801 & 21098 of 2010 4 The Delimitation Commission has issued general guidelines for the delimitation of wards of Village/Block/District Panchayats. The draft proposals for delimitation of wards of Village Panchayats were published on 21.12.2009 and the last date for receipt of objections and suggestions was on 5.1.2010. Para 4 of the said guidelines is reproduced below: Going by the same, the objections or suggestions received after the last date cannot be accepted. Herein, the draft was published on 21.12.2009. 9. Going by the statement filed on behalf of the Delimitation Commission, the last date notified for receipt of objections, was on 11.1.2010 and ten objections were received. The objections so received by wpc 18801 & 21098 of 2010 5 the District Collector, were enquired through the Village Officer, Vengara. The objectors were heard by the Delimitation Commission on 15.3.2010 and thereafter, the Commission on 30.4.2010 issued Ext.P8 as a final order giving instructions to the Secretary of the Panchayat to make necessary amendments to the draft delimitation proposal.' 10. Regarding the reasons for varying Ext.P8 by Ext.P9, what is mentioned in para 7 of the statement is that after passing and communicating the order, complaints were received pointing out that if the instructions contained in Ext.P8 is implemented, there will be an increase in the number of population in Ward No.2 and the number of population will fall in Ward No.1. Accordingly, Ext.P9 was issued on 9.6.2010 cancelling the instructions contained in Ext.P8 order. It is stated that the mistake is corrected before the publication of the final order. Therefore, evidently, long after Ext.P8 order was passed, fresh objections were received by the Commission on 8.6.2010, the legality of which is under challenge in these writ petitions. 11. The statutory scheme for delimitation of constituencies is Section 10 and Section 10(2) is extracted below: - “(2) The Delimitation Commission shall.- - (a) publish the proposals of the Delimitation Commission in wpc 18801 & 21098 of 2010 6 respect of the matters mentioned in clause (a) of sub-section (1), with a notice specifying the date on or after which the proposals will be considered by it and by inviting objections and suggestions with respect to the proposals before a date specified in the notice, by affixing copies thereof on the notice board of the office of the Panchayat concerned and in such conspicuous places within the Panchayat area concerned; (b) publish in the Gazette and in any two local newspapers having wide circulation within the Panchayat area concerned the fact of publication under clause (a); © consider all objections and suggestions that may have been received by the Delimitation Commission before the date so specified; and (d) delimit the constituencies.” 12. Relying upon the above provisions, it is submitted by the learned counsel for the petitioners that the Commission's power is to “delimit the constituencies” after publishing the proposal, inviting objections and suggestions. It is pointed out that finality is attached to the said order which cannot be breached by the Commission also. Section 11 contains power to rectify printing mistakes, etc. The said section confers power to correct any printing mistake in any order made under Section 10 or any error therein arising from an inadvertent slip or omission. It is therefore pointed out that what is envisaged under Section 11 is only correction of a wpc 18801 & 21098 of 2010 7 printing mistake or an error and not a redetermination regarding the delimitation of wards. No question of any fresh adjudication, variation of the draft or final order which has impact on the delimitation of wards can be done by the Commission. 13. The Apex Court and this Court have considered the powers of the Delimitation Commission and the extent to which a final order could be subjected to any amendment, etc. 14. **Election Commission of India v. Mohd. Abdul Ghani and others** {(1995) 6 SCC 721} concerned a case where the villages falling within one district which formed part of a constituency mentioned in the delimitation order later forming part of territorial division of another district, due to change in course of river. It was held that the power of Election Commission does not extend to alternation of boundaries or area or extent of any constituency shown in the delimitation order. Therein, the matter was considered in the light of Section 9(1)(b) of the Representation of the People Act, 1950 and Section 11(1)(b) of the Delimitation Act, 1972. Their Lordships held thus in para 10: “In our opinion, the entire scheme of these enactments and the nature of power conferred on the Election Commission to merely update the Delimitation Order by making the necessary changes on wpc 18801 & 21098 of 2010 8 account of subsequent events to correct the description in the Delimitation Order which has become inappropriate, lead to the conclusion that the power of the Election Commission under these provisions is only of this kind. This power cannot extend to alteration of the boundaries or area or extent of any constituency as shown in the Delimitation Order.” The above principle was laid down while considering the scope of the power conferred on the Election Commission to update the Delimitation Order. Herein, the question arising for consideration is different. 15. The question that arose in **Kunhabdulla's case** (2000 (2) KLJ 709), was regarding the exercise of the power of the Election Commission under Section 10A of the Act to review any final order passed by the District Collector. While considering the extent and scope of the said power, their Lordships observed thus in para 7: “That apart, it stands to reason that the order of de-limitation passed by the District Collector after undertaking a lengthy exercise thereby exhausting the power relating to de-limitation should enjoy complete immunity from being called in question in any Court of Law (vide Section 10(3) of the Act) much less by a lesser authority like the Election Commission whose only power is to rectify errors apparent on the face of the record (vide Section 11 of the Act) and not to sit in judgment over the order of the Collector like an appellate or revisional authority. Section 10(3) thus gives finality wpc 18801 & 21098 of 2010 9 to the order passed by the Collector under Section 10(1) which cannot be touched subsequently by the Election commission (except to correct errors apparent on the face of the record as enjoined under Section 11 of the Act) under the purported exercise of the power to review conferred under Section 10A added by Act 13/2000.” Of course, the situation herein is not a case where the Delimitation Commission has exercised any power of review. Section 10A of the Act has been deleted also. 16. Another important decision is that of the Apex Court in **Association of Residents of MHOW (Rom) and another v. Delimitation** **Commission of India and others** {(2009) 5 SCC 404}. Therein, the power of the Commission to depart from the original proposal and the factors that can be considered by the Commission before making final delimitation order, came up for consideration. It was argued that whenever the Commission wants to have a change of the draft proposal before the final delimitation order is notified, then again a fresh opportunity should be given to submit objections, etc. While considering the scope and width of the power of the Delimitation Commission, it was held thus in paragraphs 25 and 26: “...................What the Commission required is to consider the wpc 18801 & 21098 of 2010 10 objections and suggestions for its proposals before determining the delimitation of the constituencies in the entire State. The proposals cannot emanate from any interested person. The distinction between the Commission's proposals and the objections and suggestions in response to such proposals is to be borne in mind. Every suggestion or objection cannot ultimately result in any fresh proposal by the Commission. The Commission is not under any legal or constitutional obligation to go on issuing any revised proposals depending upon every objection and suggestion as may be received by it in response to its proposals. Since the exercise of the delimitation is not with reference to any particular constituency, the suggestions or objections, as the case may be, in respect of one constituency may have their impact at least on one or more of the adjoining constituencies.” There is thus, a distinction between the proposals made by the Commission and the suggestions and objections filed by interested parties. 17. This Court, in a recent decision in **Chirayinkeezhu A. Babu's case** (2010 (2) KLT 957), also had occasion to consider the power of the Commission to correct errors, accidental mistakes, etc. in the delimitation order. It was held that the Commission has got the power to correct mistakes in the delimitation order. An identical provision under Section 11 (1)(a) of the Act was considered and it was held thus: - “ It is evident from Section 11(1)(a) that the Election wpc 18801 & 21098 of 2010 11 Commission is conferred with the power to correct any printing mistake in any of the orders made by the Commission under Section 9 or any error arising therein from an inadvertent slip or omission. The said power is given obviously to promote public interest itself, as otherwise such orders, unless allowed to be corrected, will throw the system open to criticism. Therefore, even in the absence of an express power conferred o n the Delimitation Commission, the Commission is well within its power to correct mistakes.” Relying upon the principles, learned counsel for the petitioners submitted that the scheme for delimitation emphasises the aspect of finality once the objections and suggestions are considered and an order is passed by the Commission and thereafter the only power is to correct errors and mistakes under Section 11 of the Act. The learned counsel for the Commission submitted that here the final order delimiting the ward is yet to be published in the Gazette and hence the situation herein is not similar to the points considered in **Babu's case** (supra). 18. The question to be considered herein is regarding the legality of the action taken by the Commission to accept the objection filed after the last date fixed for it. Herein, in accordance with the guidelines the last date fixed for submitting objections was on 11.1.2010. Going by para 4 of the wpc 18801 & 21098 of 2010 12 guidelines, an objection/suggestion submitted after the last date fixed, could not have been accepted at all. The said date was fixed as per Section 10(2) (a), obviously. The same is binding on the Commission itself. The order Ext.P8 passed by the Commission is dated 30.4.2010 and Exts.P9 and P11 show that the Commission received fresh objections far beyond the period prescribed for acceptance of the objection. That was acted upon and a revised order has been passed cancelling Ext.P8 itself. The same is impermissible. The last date for submitting objections having not been extended by the Commission, para 4 of the guidelines really stands in the way of the Commission accepting a fresh objection/suggestion or proposal. 19. The scheme under Section 10(2) of the Act envisages the publication of the draft proposal, inviting objections and suggestions, before a date specified in the notice, enquiry into the same and a hearing in the matter. Therefore, Ext.P8 as far as this case is concerned, is result of such an exercise. Now everything has been given a go-bye while issuing an order dated 9.6.2010 on the basis of a fresh complaint dated 8.6.2010. The same shows that no fair procedure was followed by the Commission also. 20. In that view of the matter, the petitioners are entitled to succeed in the writ petitions. Exts.P9 and P11 in W.P.(C) No.21098/2010 are quashed. wpc 18801 & 21098 of 2010 13 Consequently, the Delimitation Commission will publish the final notification as directed in Ext.P8. The writ petitions are allowed as above. No costs. **(T.R. Ramachandran Nair, Judge.)** **kav/**