IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23210 of 2010(A)
1. V.MOHANAN, AGED 50 YEARS, S/O.GOPI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE STATE DELIMITATION COMMISSION,
3. THE STATE ELECTION COMMISSIONER,
4. THE DIRECTOR OF PANCHAYATHS,
5. THE DISTRICT COLLECTOR, KANNUR.
6. THE SECRETARY, THILLANKERI GRAMA
7. THILLANKERI GRAMA PANCHAYAT,
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent :SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :30/08/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 23210 of 2010-A
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Dated this the 30th day August, 2010.
JUDGMENT
The petitioner’s grievance is regarding the delimitation of various
wards of Thillankeri Grama Panchayat. Ext.P1 is the preliminary
notification, whereby the proposal is to delimit the Panchayat into 13 wards.
It shows the division of constituencies and fixation of boundaries along
with a map attached to it. In the election during 2005, the number of wards
was 12. Mainly it is complained that for taking advantage the party ruling
the Panchayat has changed the natural boundaries, so as to suit their
purpose. Instances have been pointed out by the petitioner in the writ
petition. Ext.P5 is the final order passed by the Delimitation Commission.
It is pointed out that not much change was made with the proposal.
2. The Delimitation Commission has filed a statement wherein a
preliminary objection has been taken on the maintainability of the writ
petition, relying upon Article 243-O(a) of the Constitution of India. The
first point to be thus considered is the preliminary objection regarding the
maintainability of the writ petition since there is an express bar of judicial
review under Article 243-O(a) of the Constitution of India.
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3. 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
Article 243K, shall not be called in question in any
court.”
4. 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
wpc 23210/2010 3
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.
5. 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
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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”.
6. 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]”.
7. 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.
8. 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
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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
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
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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 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.
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9. In the light of the above, the preliminary objections raised by
the Commission is sustainable.
10. It is explained in the statement that 12 objections were received
including the one submitted by the petitioner and they were enquired
through the Asst. Registrar of Co-operative Societies (Audit),
Thaliparamba. On the basis of the enquiry report and the remarks thereon
by the District Collector, the objectors were personally heard by the
Delimitation Commission on 16.2.2010. After having considered all the
points raised in the objections and the additional facts gathered during the
personal hearing, the Commission passed an order dated 10.4.2010 directing
the Secretary of the Grama Panchayat to effect certain changes in the draft
proposal.
11. One of the main objection raised by the petitioner is that after
2005, 537 new houses were constructed in the Panchayat, but only 54
houses alone were counted in the delimitation order. It is explained by the
Commission that all the residential buildings within the jurisdiction of the
Panchayat and which are reflected in the assessment registers of the
Panchayat were taken into account while computing the total residential
buildings. It is pointed out that all the residential buildings were included in
the Annexures appended to the final delimitation order also. Learned
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Standing Counsel for the Commission also made available a copy of the
enquiry report on the objections raised by the petitioner. The enquiry
report also shows that the objections have been considered.
12. As far as the process of delimitation is concerned, it is well
settled that every one of the objections need not lead to a revised proposal
or publication of a new proposal by the Commission. The Commission
hears the parties on the objection raised and considers the enquiry report
received and thereafter, final orders are passed. Herein, it is evident that
the said exercise has been done by the Commission. It is not demonstrated
as to how the natural boundaries have been violated also.
For all these reasons, I find that no interference is called for and the
writ petition is dismissed. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/