Sunil Isaac and Aleyamma Asavu v. Kerala State Election Commission and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).No. 27035 of 2010(D) -------------------------- PETITIONER(S): --------------- 1. SUNIL ISSAC, POTTEMPLACKAL HOUSE, MELUKAVU VILLAGE, MELUKAVU KARA, KOTTAYAM DISTRICT. 2. ALEYAMMA ASAVU, POTTEMPLACKAL HOUSE, POONJAR VADAKKEKARA VILLAGE, THALANADU KARA, CHOVOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.ABRAHAM GEORGE JACOB RESPONDENT(S): --------------- 1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY THE KERALA STATE ELECTION COMMISSIONER, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA IN THE DEPARTMENT OF LOCAL SELF GOVERNMENT THIRUVANANTHAPURAM-695 001. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 GOVERNMENT PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2010, ALONG WITH W.P(C)No.27082/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P(C).Nos.27035 & 27082 of 2010 ----------------------------------------Dated this the 3[rd] day of September, 2010** ## **JUDGMENT** A common question arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. W.P(C)No.27035 of 2010: The first petitioner is a resident of Melukavu Grama Panchayat and the second petitioner is a resident of Thalanadu Grama Panchayat, in Kottayam District. The petitioners belong to Mala Araya community which is recognised as a Scheduled Tribe in the State of Kerala. The petitioners who claim that they propose to contest in the ensuing elections to the local bodies, have filed this writ petition challenging the decision taken by the Kerala State Election Commission whereby the office of the President of Moonnilavu Grama Pachayat was reserved to be filled up by a member belonging to the Scheduled Tribe communities. It is contended that the office of the President of Moonnilavu Grama Panchayat was reserved to be filled up by a member of the Scheduled Tribe ## **W.P(C).Nos.27035 & 27082 of 2010** -:2:- communities in the elections held in the year 1995 (vide Ext.P1), that during the next two elections (2000 and 2005) the office of the President was not reserved for members of the Scheduled Tribe communities in the whole of Kottayam District and therefore, the reservation should have been of the office of the President of Melukavu Grama Panchayat or Thalanadu Grama Panchayat having regard to the population of persons belonging to the Scheduled Tribe in Kottayam District. 3. W.P(C)No.27082 of 2010: The petitioner herein is a permanent resident of Moonnilavu Grama Panchayat. He challenges Ext.P1 notification which is the same as Ext.P3 produced in W.P(C) No.27035 of 2010 reserving the office of President of Moonnilavu Grama Panchayat for members belonging to the Scheduled Tribe communities. The petitioner herein has raised contentions which are similar to those raised by the petitioners in W.P(C)No.27035 of 2010 and has prayed for an order directing respondents 1 and 2 to reserve the office of President of Moonnilavu Grama Panchayat for general category candidates. 4. The learned Standing Counsel for the Kerala State Election Commission has filed a statement dated 2.9.2010 in both the writ petitions. The statements are identically worded. The relevant ## **W.P(C).Nos.27035 & 27082 of 2010** -:3:- portion thereof, namely paragraphs 3 to 7 are extracted below:- _“3. It is submitted that Section 153(3) of the Kerala Panchayat Raj Act which provides for the reservation of offices of President of Grama Panchayats has been amended by Kerala Panchayat Raj (Amendment) Act, 2009. As per the said amendment, the word “one-third” in sub-clause (i) of clause (b) of sub-section 153(3) of the Kerala Panchayat Raj Act has been substituted with the words “Fifty percent (in the case of fraction, it shall befixed to the next higher integer)”. Further, the word “one-third” in sub-clause (ii) of clause (b) of sub-section 153(3) of the Kerala Panchayat Raj Act has been substituted with the words “Fifty percent (in the case of fraction, it shall be fixed to the next higher integer)”._ _4. Pursuant to the said amendment, the Government has as per G.O(MS)No.155/10/LSGD dated 22.07.2010 fixed the number of offices of President of Grama Panchayat to be reserved for Women, Scheduled Caste women, Scheduled Tribe women, Scheduled Caste and Scheduled Tribe. Accordingly, of the 978 Grama Panchayats, the offices of President of 432 Grama Panchayats have been reserved for women [and out of the said 432 Grama Panchayats, the offices of President of 50 Grama Panchayats have been reserved for Scheduled Caste (Women) and the offices of President of 7 Grama Panchayats have been_ ## **W.P(C).Nos.27035 & 27082 of 2010** -:4:- _reserved for Scheduled Tribe (Women)]. Further, the offices of President of 50 Grama Panchayats have been reserved for Scheduled Caste and the offices of President of 7 Grama Panchayats have been reserved for Scheduled Tribe._ _5. Thereafter, following the procedure prescribed under Sub-section (4) of Section 153 of the Kerala Panchayat Raj Act, the allotment of seats to the offices of President so reserved has been made by the State Election Commission to Women, Scheduled Castes and Scheduled Tribes after excluding the Grama Panchayats which were reserved for the said classes during the 2005 General Election to Local Bodies and based on the percentage of population of Scheduled Caste, Scheduled Tribe and women, as the case may be vide NotificationNo.212/2010/SEC dated 26.08.2010._ _6. It is submitted that Moonilavu Grama Panchayat is comprised within Erattupeta Block Panchayat and as per Order No.212/2010/SEC dated 26.08.2010 the State Election has reservedthe offices of President of 5 Grama Panchayats in Erattupetta Block Panchayat. That is, the offices of President of 4 Grama Panchayats in Erattupetta Block Panchayat have been reserved for women and the office of President of 1 Grama Panchayat in Erattupetta Block Panchayat has been reserved for Scheduled Tribe._ ## **W.P(C).Nos.27035 & 27082 of 2010** -:5:- _7. Here, it may be noted that Erattupetta Block Panchayat comprises of 9 Grama Panchayats, offices of President of 5 Grama Panchayats were reserved during 2005. Therefore, for the 2010 General Election to Local Bodies, for reserving the offices of President of 5 Grama Panchayats in Erattupetta Block Panchayat, the offices of President of 4 Grama Panchayats which had not been reserved during 2005 were reserved for women and since among the remaining 5 Grama Panchayats in Erattupetta Block Panchayat, Moonilavu Grama Panchayat is having the highest percentage of Scheduled Tribe Population ie: 32.33%, the same has been reserved for Scheduled Tribe.”_ Relying on the decision of a Division Bench of this Court in _**Muhammed v. State of Kerala**_ , 2006 (1) KLT 440 it is contended that successive reservation to different categories of candidates is permissible and that what is prohibited is only successive reservation for the same category namely reservation for women or Scheduled Caste/Scheduled Tribe candidates in quick succession. 5. I have considered the submissions made at the Bar by Sri.P.V.Baby and Sri.Abraham George Jacob, learned counsel appearing for the petitioners, and Sri.Murali Purushothaman, learned Standing Counsel appearing for the Kerala State Election Commission. ## **W.P(C).Nos.27035 & 27082 of 2010** -:6:- Sub section (3) of Section 153 of the Kerala Panchayat Raj Act provides for reservation of the office of President of Village Panchayats, Block Panchayats and District Panchayats for Scheduled Caste/Scheduled Tribe and Woman candidates. The reservation is to be made having regard to the population of Scheduled Castes/Scheduled Tribes in the State of Kerala in the case of such categories of candidates. It is also stipulated that 50% of the seats including the seats reserved for Scheduled Caste/Scheduled Tribe candidates shall be reserved for women candidates. Sub section (4) of Section 153 stipulates that the State Election Commission shall thereupon allot by rotation the seats reserved under sub section (3). It is stipulated that the rotation shall start from the Panchayat in which the Scheduled Castes/Scheduled Tribes/Women have the largest percentage of population and then passed on to the next Panchayat having the largest percentage of population and so on. 6. The statement filed on behalf of the State Election Commission discloses that Moonnilavu Grama Panchayat, Melukavu Grama Panchayat and Thalanadu Grama Panchayat fall within Erattupetta Block Panchayat, that Erattupetta Block Panchayat consists of nine Grama Panchayats including the aforesaid three Panchayats and that in the elections held during the year 2005, the office of the ## **W.P(C).Nos.27035 & 27082 of 2010** -:7:- President of five Grama Panchayats of Erattupetta Block Panchayat other than the aforesaid three Panchayats were reserved for candidates belonging to the Scheduled Castes/Scheduled Tribes. The statement also discloses that in that view of the matter when the question of applying the rotation for the current election arose, the State Election Commission decided to exclude those five Grama Panchayats from the zone of consideration and apply the rotation to the remaining four Grama Panchayats wherein the office of the President had not been reserved during the year 2005. The statement also discloses that it was having regard to the fact that in five out of the nine Grama Panchayats in Erattupetta Block Panchayat other than Moonnilavu, Melukavu and Thalanadu Grama Panchayats, the office of the President was reserved for Scheduled Caste/Scheduled Tribe candidates, that in the ensuing election, the State Election Commission decided to apply the rotation to the remaining four Grama Panchayats including Moonnilavu, Melukavu and Thalanadu Grama Panchayats and that having regard to the percentage of population of members of the Scheduled Castes/Scheduled Tribes, the State Election Commission decided to reserve the office of the President of Moonnilavu Grama Panchayat for candidates belonging to the Scheduled Tribe communities. ## **W.P(C).Nos.27035 & 27082 of 2010** -:8:- 7. In my opinion the said action of the State Election Commission cannot be said to be arbitrary or one offending the provisions contained in section 153 of the Kerala Panchayat Raj Act. In view of the admitted fact that in the elections held during the years 2000 and 2005 the office of the President of Moonnilavu Grama Panchayat had been reserved for any category of candidates and was treated as one in the general category and was not reserved for Scheduled Caste/Scheduled Tribe candidates, it cannot also be said that the office of the President of Moonnilavu Grama Panchayat has been reserved successively for the said category of candidates. In such circumstances I find no grounds to interfere with the decision taken by the State Election Commission. I accordingly hold that there is no merit in these writ petitions. The writ petitions fail and are dismissed. **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).Nos.27035 & 27082 of 2010 ----------------------------** ## **JUDGMENT** **3[rd] September, 2010**