IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4237 of 2008(D)
1. CHIRAYINKEEZHU A.BABU, ADVOCATE,
... Petitioner
Vs
1. THE DELIMITATION COMMISSION,
... Respondent
2. MR.JUSTICE KULDIP SINGH (RETD),
3. MR.B.B.TANDON, MEMBER,
4. MR.N.MOHANDAS, MEMBER,
5. MR.SHANGARA RAM, SECRETARY,
6. THE ELECTION COMMISSION OF INDIA,
7. THE KERALA STATE ELECTION COMMISSIONER,
8. THE CHIEF ELECTORAL OFFICER,
9. THE UNION OF INDIA,
10. STATE OF KERALA,
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :01/03/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 4237 of 2008-D
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Dated this the 1st day of March, 2010.
JUDGMENT
The important question that is raised in this writ petition is with
regard to the power of the Delimitation Commission of India to issue a
corrigendum notification, after the publication of the order delimiting the
Constituencies under Section 10(1) of the Delimitation Act (for short ‘the
Act’). It is also contended that the Statute does not confer any such power
and the only provision is the one conferring power under Section 11 of the
Act on the Election Commission to correct any printing mistake in any
order made under Section 9 or any error arising therein by way of
inadvertent slip or omission.
2. The bare facts for the disposal of the writ petition are the
following: The petitioner is a permanent resident and voter in
Chirayinkeezhu Assembly Constituency and is a lawyer. Prior to the
delimitation of the Constituencies, Chirayinkeezhu Panchayat was part of
Attingal Assembly Constituency.
3. After the formation of the Delimitation Commission in terms of
the Delimitation Act, 2002, Ext.P2, a proposal for delimitation of the
wpc 4237/2008 2
Parliamentary and Assembly Constituencies in the State was published. In
the proposal serial No.128 Attingal and serial No.129 Chirayinkeezhu
were to be reserved as SC Constituencies. After the consideration of
various objections submitted by several voters including the sitting M.L.A.
of Attingal, viz. Shri Vakkom B. Purushothaman, the final order was
published by the Commission as per Ext.P3. Going by the final order
published on 31.5.2005, serial No.129 Chirayinkeezhu Assembly
Constituency was removed from the list of SC reserved Constituency and
instead serial No.133 Vattiyoorkavu was made as SC reserved Constituency
in Thiruvananthapuram District.
4. Ext.P4 is the corrigendum notification issued nearly after three
years, viz. on 16.1.2008 whereby the Delimitation Commission ordered that
the status of 129 Chirayinkeezhu Assembly Constituency shall be as
reserved for Scheduled Castes, ie. 129 Chirayinkeezhu (SC) instead of 133
Vattiyoorkavu (SC) and 133 Vattiyoorkavu (SC) shall be shown as a
General Constituency. This is under attack on various grounds, in this writ
petition.
5. Heard Shri T.P.Kelu Nambiar, learned Senior Counsel and Shri
K.V. Sohan, appearing for the petitioner and Shri Murali Purushothaman,
learned Standing Counsel appearing for the respondents.
wpc 4237/2008 3
6. Respondents 2 to 4 are respectively, the Chairman and Members of
the Delimitation Commission and the 5th respondent is its Secretary.
7. Shri T.P. Kelu Nambiar, learned Senior Counsel appearing for the
petitioner contended that after Ext.P3 final order was passed, the
Delimitation Commission has ceased to exist. Section 11 of the Act
enables the Election commission to correct any printing mistake in any of
the orders made by the Delimitation Commission under Section 9 or any
error arising therein from an inadvertent slip or omission. The Delimitation
Commission has no power to amend or correct the final order including any
printing mistake or any error after the publication of the order under Section
10(1) of the Act. Ext.P3 is the order published by the Delimitation
Commission under Section 10(1) of the Act as per the modes provided
therein including Official Gazettes and going by sub-section (2), it shall
have the force of law and shall not be called in question in any court. The
said notification was approved by this Court in the decision in Chief
Electoral Officer v. Sunny Joseph (2005 (4) KLT 599) and therefore the
Commission cannot tinker with the said order, as is done presently. It is an
order passed without jurisdiction as the Commission became functus officio
after the publication of Ext.P3 notification. The bar under Article 329(a) of
the Constitution of India to challenge in any Court the order issued by the
wpc 4237/2008 4
Delimitation Commission under the Act will not apply here. Ext.P4 is
totally null and void; it has to be ignored and Ext.P3 therefore has to be
declared as valid for all purposes. It is also contended that going by the
principles contained in Section 9(1)(c) of the Act, the SC Constituencies
should not be clustered, but shall be distributed and herein these two
Constituencies which are adjoining and from the same taluk, are now shown
as SC reserved Constituencies.
8. Shri Murali Purushothaman, learned Standing Counsel appearing
for the Election Commission of India and the Delimitation Commission, by
relying upon the statements filed in support of the action, submitted that the
Delimitation Commission did not become functus officio as on the date of
publication of Ext.P4. In the light of the bar under Article 329(a) of the
Constitution, the consolidated order Ext.P5 is having the force of law, it is
beyond challenge and therefore the writ petition is not maintainable,
especially in the light of the decision of the Apex Court in Meghraj
Kothari v. Delimitation Commission and others (AIR 1967 SC 669
which was followed by the Division Bench of this Court in Sunny Joseph’s
case (2005 (4) KLT 599). Ext.P4 can also be treated as an order issued
under Section 9 and therefore the same also gets protection under Section
10(2) of the Act, and the Delimitation Commission is well within its power
wpc 4237/2008 5
to issue the corrigendum notification. Learned Standing Counsel relied
upon various decisions of this Court and that of the Apex Court in this
regard.
9. As already noticed, Ext.P2 is the proposal published by the
Delimitation Commission under Section 9(2) of the Act, 2002 for the
delimitation of Parliamentary and Assembly Constituencies in the State of
Kerala. Ext.P3 is the order passed under Section 9(2) of the Act and
published under Section 10(1) of the Act finalising the above proposal after
considering objections and suggestions made in public sittings. Ext.P5 is
the Delimitation of Parliamentary and Assembly Constituencies Order, 2008
made by the Election Commission, viz. the consolidated order in respect of
all the States.
10. On behalf of the respondents, various documents have been
produced. Annexure A is the guidelines prescribed by the Delimitation
Commission for the purpose of completing the whole exercise. Annexure B
is the photo copy of the Delimitation (Amendment) Ordinances, 2008 and
Annexure C is the photo copy of the Presidential Order issued under
Articles 82 and 170(3) of the Constitution dated 19.2.2008 by which the
Delimitation order in respect of the 22 States/Union Territories have been
made applicable from 19.2.2008. Thus, by Annexure C, Ext.P3
wpc 4237/2008 6
Delimitation Order, which, as corrected by Ext.P4, has been given effect
from 19.2.2008.
11. Some of the provisions of the Delimitation Act, 2002 also will
be relevant for considering the legal issues raised in this writ petition. The
Delimitation Commission is constituted under Section 3 of the Act and
under Section 4(2), the Commission shall readjust the division of each State
into territorial constituencies for the purpose of elections to the House of the
People and to the State Legislative Assembly on the basis of the census
figures and ascertained at the census held in the year 2001. Section 9(1)(c)
is important, which is extracted below:
“(c) constituencies in which seats are reserved for the Scheduled
Castes shall be distributed in different parts of the State and located
as far as practicable, in those areas where the proportion of their
population to the total is comparatively large.”
12. Section 10(1) empowers the Commission to publish its order
made under Section 8 or 9 in the Gazette of India and in the official
Gazettes of the States concerned and simultaneously cause such orders to
be published at least in two vernacular newspapers, etc. Section 10(2) is
also important for the purpose of this case which is extracted below:
“(2) Upon publication in the Gazette of India, every such order shall
have the force of law and shall not be called in question in any
wpc 4237/2008 7
Court.”
Going by sub-section (2) of Section 10, the order passed by the Commission
herein, (Ext.P3) shall have the force of law and shall not be called in
question in any Court. Section 11 empowers the Election Commission to
correct any error arising from an order under Section 9 by inadvertent slip
or omission, etc.
13. The first question to be considered is the one which is
vehemently argued by the learned Senior Counsel Shri T.P. Kelu Nambiar
appearing for the petitioner, that the entire exercise done by the
Commission is without any power and jurisdiction and therefore null and
void. Reliance is placed on Sunny Joseph’s case (2005 (4) KLT 599)
wherein the Division Bench after interpreting Sections 10(1) and 10(2) of
the Act, held that judicial review is not permissible against the order of the
Delimitation Commission. It was held by the Division Bench speaking
through K.S. Radhakrishnan, J. (as he then was) that “By Article 329(a) the
validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies cannot be called in question in any
Court. The difference in the phraseology used in Article 329(a) and (b)
may give some room for challenging the orders passed under Article 329(b)
under Article 226 of the Constitution of India on certain limited grounds
wpc 4237/2008 8
but not the orders relating to delimitation of constituencies which fall under
Article 329(a).” The words “shall not be called in question” are absent in
Article 329(b), but very much present in Article 329(a).” Article 329(a) is
extracted below:
“(a) 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 Art.327 or Art.328, shall not be
called in question in any court.”
Therefore, the Division Bench, following the decision of the Apex Court in
Meghraj Kothari’s case (AIR 1967 SC 669), put a lid on the order Ext.P3
beyond the pale of challenge and hence it is pointed out that as this Court
also cannot touch it under Article 226 of the Constitution and hence the
Delimitation Commission could not have passed Ext.P4..
14. Learned Senior Counsel Shri T.P. Kelu Nambiar further
submitted that the Delimitation Commission became functus officio after
the publication of Ext.P3. The pleadings made by the respondents in this
regard are relevant, since they dispute the same. It is pointed out in the
statement filed on behalf of the respondents dated 18.2.2008 that after the
Census Commission of India published the relevant figures of the 2001
census on 31.12.2003, the Delimitation Commission of India commenced
wpc 4237/2008 9
the work of delimitation of Parliamentary and Assembly constituencies
from 2004. Final orders have been published as on the date of filing of the
said statement in respect of all States and Union Territories, except Assam,
Arunachal Pradesh, Nagaland and Manipur. In respect of these States, the
Delimitation has been deferred by the President of India under the
Delimitation Act, 2002 as further amended in 2008. The Delimitation
Commission was carrying out its task assigned to it under the Constitution,
Representation of the People Act and the Delimitation Act then and the
Commission would become functus officio only after completion of the
task. It is therefore submitted that since the Delimitation Commission was
functional and as no consolidated Delimitation order has been published
by the Election Commission at that point of tine, Ext.P4 is perfectly within
jurisdiction. It is passed in exercise of the inherent powers of the
Delimitation Commission. The Election Commission can exercise the
power under Section 11 only after the process of delimitation in all States is
completed by the Delimitation Commission.
15. In the further statement filed on 26.3.2008, it is pointed out that
in exercise of the powers under Section 10A(1) of the Act, the President of
India has by order published in the Gazette of India deferred the
delimitation exercise in the States of Assam, Arunachal Pradesh, Nagaland
wpc 4237/2008 10
and Manipur. Annexure B is the copy of the Delimitation (Amendment)
Ordinance, 2008. Annexure C published by the President of India in
exercise of the powers under Articles 82 and 170(3) of the Constitution, is
dated 19.2.2008. Therein, Ext.P3, corrected by Ext.P4 has been given
effect from 19.2.2008. In the additional statement dated 20.10.2008 filed
by the respondents, it has been pointed out that the Chairperson of the
Delimitation Commission informed the Government of India about the
accomplishment of delimitation work by the Delimitation Commission and
expressed its intend to demit the office of the Chairperson with effect from
31.5.2008 and the Government of India in exercise of the powers
conferred by Section 3 read with sub-section (6) of Section 10 of the
Delimitation Act, has notified the 1st day of June 2008 as the date on which
the Delimitation Commission shall cease to exist. The same has been
produced as Annexure D.
16. In the light of the factual scenario pointed out above, it cannot be
said that the Delimitation Commission became functus officio after
publication of Ext.P3 order. As on the date of Ext.P4 order, therefore, the
Commission was continuing its official functions and by Annexure D
notification dated 23.5.2008 it has ceased to exist with effect from
1.6.2008. The question is whether in the light of Section 11 of the Act,
wpc 4237/2008 11
conferring powers on the Election Commission of India, the power to
correct any inadvertent slip or omission, etc. the Delimitation Commission
retains the very same power in the absence of any express provisions under
the Act.
17. It is well settled that a statutory power will be construed as
impliedly authorising everything which can be regarded as incidental or
consequential to the power itself, and it is also well settled that the power
can be exercised from time to time as occasion requires. Normally after an
order is issued by the Delimitation Commission of India under Section 9
and published under Sections 10(1) and 10(2) of the Act, the Delimitation
Commission will cease to exist. It is evident from Section 11(1)(a) that
the Election 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.
18. But, will it deny the power of the Delimitation Commission
while the said Commission is in office, to correct an accidental error or
omission, merely because of the publication of the order under Section 10
wpc 4237/2008 12
(1) of the Act? Herein, in Ext.P4 it is pointed out that due to purely clerical
error in the EXCEL sheets relating to Thiruvananthapuram District
prepared at the time of signing the final order in respect of Kerala State, the
total SC population and percentage of SCs in 133-Vattiyoorkavu (SC) AC
were inadvertently shown as 55530 and 24.74% respectively, which were
wrong and whereas the correct figures were 23214 & 10.34% respectively.
In Chirayinkeezhu there is a higher percentage of SC (15.99%). It is
pointed out in Ext.P4 itself that in the light of the correct figures and in the
light of the general principles adopted by the Commission for reservation of
Assembly Constituencies for SC in terms of Section 9(1)(c) of the Act.
129-Chirayinkeezhu AC should qualify for reservation as SC instead of
133-Vattiyoorkavu SC.
19. Herein, I may refer to a decision of a learned Single Judge of this
Court in V.V. Prakasini v. K.P.S.C. and others (1993 (1) KLJ 632)
wherein it was held that public authority has power to correct apparent
mistake even without a specific provision. Rule 3(c) of the KS & SSR was
challenged on the ground that the power conferred is unguided. While
considering the power of the Public Service Commission under Rule 3(c)
to cancel an advice of a candidate which was wrongly made, T.L.
Viswanatha Iyer, J. held thus in para 18:
wpc 4237/2008 13
“Such a reserve power to correct mistakes committed by itself has to
be located in every public authority in the interest of justice and to
avoid arbitrariness. It is not uncommon – in fact it is a human falling– that errors are committed in the conduct of human affairs.
Infallibility is not a human virtue, that being a quality attributable
only to the Almighty. Such a power to correct apparent mistake is
therefore an absolute necessity and has to be found in every
authority, even without a specific provision. …………………Equally if
the higher ranking given to the petitioner could have been
successfully challenged as patently erroneous, why not the same
result be achieved by the Commission itself rectifying what
otherwise was an obvious mistake committee by it? Conferment of
such a power is found in various statutes and is an essential requisite
for achieving the ends of justice.”An earlier decision of this Court by the same learned Judge in Sasidharan
v. Reserve Bank of India (1990 (2) KLT 573) and the decision of the
Apex Court in State of Punjab v. Jagdip Singh (AIR 1964 SC 521), have
been relied upon, to explain the said legal position. The Apex Court in the
above decision, held thus while analysing a similar issue:
“The question then is as to the effect of a void order of confirmation.
When an order is void on the ground that the authority which made
it had no power to make it cannot give rise to any legal rights, and as
suggested by the learned Advocate General, any person could have
challenged the status of the respondents as Thahsildars by instituting
proceedings for the issue of a writ of quo warranto under Article 226
of the Constitution. Had such proceedings been taken it would not
wpc 4237/2008 14
have been possible for the respondents to justify their status as
permanent Tahsildars and the High Court would have issued a writ
of quo warranto depriving the respondents of their status as
permanent Tahsildars. Now, where the Government itself realises
that an order made by an authority under the Government is void, is
it powerless to do anything in the matter? It is bound to give effect
to a void order and treat as confirmed Tahsildars persons who have
no legal right to be treated as confirmed Tahsildars? Is it not open to
the Government to treat the confirmation as void and notify the
persons affected and the public in general of the fact of its having
done so by issuing a notification of the kind it made on October 31,
1957? In our opinion where a Government servant has no right to a
post or to a particular status, though an authority under the
Government acting beyond its competence had purported to give
that person a status which it was not entitled to give he will not in
law to be deemed to have been validly appointed to the post or given
the particular status.”
20. In the earlier decision, in Sasidharan’s case (1990 (2) KLT
573), the learned Judge considered a case where the appointing authority
corrected a mistake in making a wrong appointment without reference to
seniority. It was held thus in para 7:
“The power is inherent in any administrative authority to correct
accidental mistakes committed by it, in ignorance of, or overlooking
the facts. Indeed such power should be exercised, where rights of
wpc 4237/2008 15
third parties have been affected by the mistaken proceedings, without
their knowledge, and without their being heard, resulting in
miscarriage of justice. If the power to correct inadvertent mistakes is
not recognised and accepted, it may lead to perpetuation of injustice
and to undesirable consequences. A person whose rights are so
affected by an illegal order passed behind his back need not be
compelled to rush to court to get it set aside, on pain of its being held
binding otherwise. The authority concerned can itself remedy the
mischief, on its being apprised of its mistake and the injustice
flowing therefrom. (See in this connection Karunakaran Nambiar v.
Director of Public Instruction – 1966 KLT 290). Such an order does
not affect any rights of the party benefiting by the mistake, as no
rights legally inhered in him by virtue of the mistaken order. Wade
in his Administrative Law (Fifth Edition, page 226) points out that
even where such powers are not (expressly) conferred, statutory
tribunals would have power, to correct accidental mistakes, and to
review a decision when facts subsequently discovered have revealed
a miscarriage of justice. The same rules must apply to non-statutory
action by administrative authorities as well.
I respectfully agree with the above dictum laid down by the learned Judge.
21. Therefore, even in the absence of an express power conferred on
the Delimitation Commission, the Commission is well within its power to
correct mistakes. The Commission found that the principles for allotting
the constituencies to SC was followed, but because of the mistake in the
wpc 4237/2008 16
figures shown, an inadvertent mistake occurred in Ext.P3. It is clear from
Ext.P4 that in Vattiyoorkavu SC, the percentage is 10.34% and in
Chirayinkeezu it is 15.99%, a higher percentage. Section 9(1)(c) of the
Act obliges the Commission to distribute the constituencies in favour of SC
as far as practicable, in those areas where the proportion of their population
to the total is comparatively large. The power exercised by the
Commission is in tune with the power already conferred on them to carry
on delimitation of constituencies and issue orders on them under the
relevant provisions.
22. True, Section 10(2) provides that an order passed under Section
10(1) is having the force of law and cannot be called in question in any
court of law. Therefore, it is clear that even judicial review is not permitted
with regard to the finality attached to the order in view of Section 10(2).
But even in respect of such an order, power is conferred on the Election
Commission under Section 11 (1)(a) 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. If such a power is conceded
to the Election Commission, there is nothing wrong in conceding an
inherent power to the Delimitation Commission to exercise the very same
power while the said Commission is in office. If the argument of the
wpc 4237/2008 17
petitioner is accepted, then the order under Section 9 cannot be touched by
the Election Commission also since the same is having the force of law,
after its publication under Section 10(1) of the Act.
23. Therefore, the true issue is whether any accidental slip or
omission should be allowed to be corrected, which will only advance the
purpose of the Delimitation Act and the principles for delimitation
provided under Articles 330 and 332 of the Constitution of India and
Section 9(1)(c) of the Delimitation Act, 2002 in regard to SC constituencies.
What is effected by Ext.P4, therefore, is the mandate of the statute in tune
with the principles under Article 332 of the Constitution. Hence the
inherent power of the Delimitation Commission has to be conceded in such
circumstances.
24. It is true that the Division Bench in Sunny Joseph’s case (2005
(4) KLT 599) upheld the notification Ext.P3 with regard to Kannur
Assembly Constituency. But that will not deprive the Delimitation
Commission any power to issue a corrigendum notification.
25. The next question is whether Ext.P4 is liable to challenge in this
writ petition filed under Article 226 of the Constitution, in view of the
express bar under Article 329(a) of the Constitution. The argument raised
by the learned Senior Counsel, Shri Kelu Nambiar is that Ext.P4 is a void
wpc 4237/2008 18
order and therefore there is no bar for this Court to declare that it is not
having any legal validity. But in the light of the findings rendered by me
above that the Delimitation Commission has power to issue Ext.P4, it
cannot be termed as a void order and it has to be treated as valid for all
purposes. As pointed out already, the Election Commission has already
come out with the consolidated order as enjoined by Section 8 of the
Representation of the people Act, 1950. Section 8 of the said Act confers
power on the Election Commission to publish single order known as
Delimitation of Parliamentary and Assembly Constituencies Order, 2008
after the Delimitation Commission has issued various orders in respect of
different States. Section 8(1)(a) and 1(b) for our purpose, is extracted
below:
8(1) Having regard to all the orders referred to in sub-section (5) of
section 4 and sub-section (3) of section 7 relating to the delimitation
of parliamentary and assembly constituencies, in all States and Union
Territories, except the States of Arunachal Pradesh, Assam,
Jharkhand, Manipur and Nagaland, made by the Delimitation
Commission and published in the Official Gazette, the Election
Commission shall–
(a) after making such amendments as appear to it to be
necessary for bringing up-to-date the description of the extent
of the parliamentary and assembly constituencies as given in
wpc 4237/2008 19
such orders, without, however, altering the extent of any such
constituency.
(b) after taking into account the provisions of the
Delimitation of Parliamentary and Assembly Constituencies
Order 1976, as made applicable pursuant to the orders made
by the President under Section 10A of the Delimitation Act,
2002 (33 of 2002) relating to delimitation of parliamentary
and assembly constituencies in the States of Arunachal
Pradesh, Assam, Manipur and Nagaland, and the provisions
of section 10B of the said Act relating to delimitation of
parliamentary and assembly constituencies in the State of
Jharkhand,
consolidate all such orders into one single order to be known as the
Delimitation of Parliamentary and Assembly Constituencies Order,
2008 and shall send authentic copies of that Order to the Central
Government and to the Government of each State having a
Legislative Assembly; and thereupon that Order shall supersede all
the orders referred to in sub-section (5) of section 4 and sub-section
(3) of section 7 and shall have the force of law and shall not be called
in question in any court.” (emphasis supplied)
Going by the same, the consolidated order, viz. Delimitation of
Parliamentary and Assembly Constituencies Order, 2008 shall have the
force of law and shall not be called in question in any Court. Ext.P5 is
the consolidated order thus brought out by the Election Commission dated
wpc 4237/2008 20
26.11.2008. Thereafter Ext.P4 cannot have a separate and independent
existence, now, leaving it open for a separate challenge.
26. Shri Murali Purushothaman, learned Standing Counsel appearing
for the respondents, submitted that in the light of Section 8 of the
Representation of the People Act, 1950 since the said order has the force of
law, it cannot be challenged under Article 329(a) of the Constitution and
therefore, in this writ petition, the same cannot be called in question, as
Ext.P4 has merged with the consolidated order Ext.P5. The consolidated
order Ext.P5 shows; serial No.128 Attingal (SC), serial No.129
Chirayinkeezhu (SC) and 133 Vattiyoorkavu (General).
27. 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). After analysing the various
provisions of the Delimitation Commission Act, 1962, their Lordships held
thus in para 19 and 20:
” (20) In our view, therefore, the objection to the delimitation of
constituencies could only be entertained by the Commission before
the date specified. Once the orders made by the Commission under
Ss.8 and 9 were published in the Gazette of India and in the official
gazettes of the States concerned, these matters could no longer be
wpc 4237/2008 21
reagitated in a court of law. There seems to be very good reason
behind such a provision. If the orders made under Ss. 8 and 9 were
not to be treated as final, the effect would be that any voter, if he so
wished, could hold up an election indefinitely by questioning the
delimitation of the constituencies from court to court. Section 10(2)
of the Act clearly demonstrates the intention of the Legislature that
the orders under Ss.8 and 9 published under S.10(1) were to be
treated as law which was not to be questioned in any court.
(20) It is true that an order under S.8 or 9 published under S.10
(1) is not part of an Act of Parliament, but its effect is to be the
same.”
In fact, the Division Bench of this Court in Sunny Joseph’s case (supra)
elaborately considered the scope and effect of Article 329(a) and examined
whether the same will breach the basic structure doctrine in Kesavananda
Bharathi’s case (AIR 1973 SC 1461) and after considering the said
decision and the decision of the Apex Court in Indira Nehru Gandhi v.
Raj Narain (AIR 1975 SC 2299), held in para 11 that judicial review can
be excluded in certain limited areas, though it is considered to be the basic
structure of the Constitution. Reliance was also placed on the later decision
of the Apex Court in L. Chandrakumar v. Union of India and others
{(1997) 3 SCC 261} wherein after considering the above two decisions of
the Apex Court, Article 329(a) was cited as an example and further it was
wpc 4237/2008 22
pointed out that judicial review cannot be considered to be a part of the
basic structure so far as election to the legislature is concerned.
28. I may mention here two earlier decisions of the Apex Court, viz.
N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency
(AIR 1952 SC 64), a landmark decision by a Constitution Bench which was
relied on by another Constitution Bench in Mohinder Singh Gill and
another v. The Chief Election Commissioner, New Delhi (AIR 1978 SC
851). While considering the question whether the rejection of nomination
could be challenged in a writ petition under Article 226 of the Constitution
in the light of the express bar under Article 329(b), Fazil Ali, J., speaking
for the Bench, held thus in para 15 in Ponnuswamy’s case (supra):
” It may be pointed out that Art.329(b) must be read as
complimentary to Cl.(a) of that article. Clause (a) bars the
jurisdiction of the Courts with regard to such law as may be made
under Arts. 327 and 328 relating to the delimitation of constituencies
or the allotment of seats to such constituencies……….. If Part XV of
the Constitution is a code by itself, i.e. it creates rights and provides
for their enforcement by a special tribunal to the exclusion of all
Courts including the High Court there can be no reason for assuming
that the Constitution left one small part of the election process to be
made the subject matter of contest before the High Courts and
thereby upset the time-schedule of the elections. The more
wpc 4237/2008 23
reasonable view seems to be that Art.329 covers all “electoral
matters”.
29. In the other important decision in Mohinder Singh Gill’s case
(AIR 1978 SC 851), V.R. Krishna Iyer, J., after referring to Ponnuswamy’s
case (supra), held thus in para 24 and 25:
“Ponnuswamy (AIR 1952 SC 64) is a landmark case in election laws
and deals with the scope, amplitude, rationale and limitations of
Art.329(b)……….There is a non obstante clause in Article 329 and,
therefore, Art.226 stands pushed out where the dispute takes the form
of calling in question an election, except in special situations pointed
at but left unexplored in Ponnuswamy (AIR 1952 SC 64).
Therefore, in the light of the non-obstante clause in Article 329, the same
reasoning will apply herein also.
30. In a recent decision in Association of Resident of MHOW
(Rom) and another v. The Delimitation Commission of India (2009 (5)
SCC 404), a similar question was considered by the Apex Court. Therein,
the Delimitation Commission, as per its proposals, had shown Dhar
Parliamentary Constituency as one consisting of 8 Assembly
Constituencies including 203-Depalpur and the adjoining 26-Indore
Parliamentary Constituency had also 8 Assembly Constituencies including
209 Mhow. In the final determination the Commission included Mhow
wpc 4237/2008 24
Assembly Constituency into Dhar Parliamentary Constituency by deleting
the same from Indore Parliamentary Constituency as originally proposed.
Consequently, the Depalpur Assembly Constituency has been deleted from
Dhar Parliamentary Constituency and added to Indore parliamentary
Constituency. This was challenged on the ground that the said shifting is
not preceded by any proposal by the Delimitation Commission. While
examining the issue, the Apex Court took the view that in the light of
Article 329(a), the writ petition under Article 226 is not maintainable. It
was argued by the appellant before the Apex Court that the protection will
be available only when the mandatory requirements of Section 9(2) are
complied with by the Commission. The Apex Court, after explaining the
decision in State of U.P. v. Pradhan Singh Khesttra Samiti {(1995)
Suppl. (2) SCC 305} and after relying upon Meghraj Kothari’s case
(supra), held thus in para 25:
“In the present case, the Commission finally determined the
delimitation of Parliamentary Constituencies in the State of Madhya
Pradesh after considering all objections and suggestions received by
it before the specified date and got published its orders in the
Gazette of India and in the Official Gazette of the State as is
required under Section 10(1) of the Act. The orders so published
puts them “in the same street as a law made by Parliament itself”.
wpc 4237/2008 25
Consequently that Notification is to be treated as law and required
to be given effect to.”
It is pointed out that herein, before Ext.P4 was issued, there was no
proposal and no hearing was conducted and for that reason also, Ext.P4
cannot be supported. But the above decision is a complete answer to the
said argument also.
31. Shri Murali Purushothaman, learned Standing Counsel
appearing for the respondents raised a further argument that going by
Section 9(2)(d) of the Act, there can be more than one orders regarding
delimitation of Assembly Constituencies and therefore Ext.P4 cannot be
said to be illegal. In fact, Section 9 of the Act shows that the Commission
shall distribute the seats in the manner provided under the provisions and
it should call for objections and suggestions and will have to hold one or
more public sittings at such place or places in the State concerned, going by
Section 9(2)(c). It is after following all those steps that Section 9(2)(d)
provides that “the Commission shall thereafter by one or more orders
determine — (i) the delimitation of parliamentary constituencies; and (ii) the
delimitation of assembly constituencies.” Ext.P4 was issued as a
corrigendum after the order under Section 9(2)(d) was issued by the
Delimitation Commission. In that view of the matter, Section 9(2)(d)
wpc 4237/2008 26
cannot be said to be attracted in the facts of this case.
32. The next question is whether the bar under under Section 329(a)
applies to Ext.P5, as a consolidated order as provided under Section 8 of
the Representation of the People Act, 1950 has already been published as
per Ext.P5, and as the same has also been published in the same manner as
in respect of Ext.P3 by publishing in the Gazette, etc. The allegation that
Ext.P4 has been published by the Secretary of the Delimitation
Commission, has been denied and it has been explained that it it is a
proceedings issued by the Delimitation Commission itself. Therefore,
nothing turns on the said allegation that it is not one issued by the
Commission.
33. Herein, as noticed already, by Annexure A, it is specified by the
Central Government that 1st day of June, 2008 will be the date on which the
Delimitation Commission shall cease to exist. Ext.P4 is dated 18.1.2008.
Therefore, it cannot be said that the Commission had become functus
officio in terms of Annexure D, Delimitation Amendment Order, 2008. Sub-
section (6) of Section 10 of the Delimitation Act, 2002 was amended by
fixing 31st July, 2008 as the final date for completion and publication of
orders. It is clear that the Chairperson of the Delimitation Commission has
informed the Central Government about the accomplishment of the
wpc 4237/2008 27
delimitation work by the Commission and intend to demit the office of the
Chairperson with effect from May 31, 2008. Annexure C is the
Presidential Order under Articles 82 and 170(3) of the Constitution, as
already noticed, by which Ext.P3 Delimitation Order corrected by Ext.P4,
has been given effect from 19.2.2008.
34. The consolidated order Ext.P5 as noticed, is one issued under
Section 8(1)(a) of the Representation of the People Act, 1950 and the bar
under Article 329(a) applies to it also. Hence, the writ petition is not
maintainable
35. For all these reasons, the writ petition is dismissed. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/