IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21982 of 2010(W)
1. MR.JOSEPH MASTER, S/O.ALEX, AGED 61,
... Petitioner
Vs
1. KERALA STATE DELIMITATION COMMISSION
... Respondent
2. KERALA STATE ELECTION COMMISSION,
3. THE DISTRICT COLLECTOR, THRISSUR
4. VALLATHOLE NAGAR GRAMA PANCHAYAT,
For Petitioner :SRI.K.JAYAKUMAR (SR.)
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :17/08/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.21982 of 2010-W
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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.
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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.
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12. With regard to the merits of the contentions also, it is explained
by the Delimitation Commission and the 4th 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/