K. Prabhakaran vs The State of Kerala and Others

T.R. Ramachandran Nair, J.—The petitioner challenges the delimitation of various wards of Anakkara Grama Panchayat. He is a political activist and had raised various objections regarding the proposal for delimitation of constituencies. Going by Ext.P3 order for the year 2005, the total area of the Panchayat was divided into 15 wards. Ext.P2 is the copy of the guidelines issued for the delimitation of wards in every Panchayat. The total number of wards has been fixed as 16 as per Ext.P4 proposal. Various grounds have been raised in the writ petition to challenge the final order Ext.P9.

On behalf of the second respondent, a statement has been filed explaining the various aspects. A preliminary objection has been raised regarding the maintainability of the writ petition, in the light of the bar of judicial review under Article 243-O(a) of the Constitution of India.

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.

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:

Section 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.

Section 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.

The issue is no longer res integra in the light of various decisions of the Apex Court and this Court viz., Meghraj Kothari Vs. Delimitation Commission and Others, , Chief Electoral Officer Vs. Sunny Joseph, , Satyan V.V. v. Election Commission of India and Ors. (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. and others etc. Vs. Pradhan Sangh Kshettra Samiti and others etc., 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".

Recently, in Chirayinkeezhu A. Babu v. Delimitation Commission and Ors. 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 Vs. Delimitation Commission and Others, ".

In fact, in Association of Resident of Mhow (ROM) and Another Vs. The Delimitation Commission of India and Others, also the above legal position has been reiterated.

Another decision to be noticed is a 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 Section 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 u/s 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 u/s 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 (Section 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 Vs. Delimitation Commission and Others, on the view that there is no provision in Section 10A that the order passed u/s 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.

In the light of the above, the preliminary objections raised by the Commission is sustainable.

On the merits, the petitioner has raised mainly the following contentions. According to the petitioner, the delimitation ought to have been conducted on the basis of new census and not on the basis of the last census of the year 2001. Importantly, it is argued that it was not based on any survey plan or cadastral map as envisaged by the guidelines. The petitioner has given in detail the alternate proposals for delimiting the wards. The assessment register prepared in 2008 was not brought into force for any purpose, but the same was relied upon for delimitation. The petitioner has given in detail certain alleged defects in the delimitation process.

It is explained in the statement filed by the second respondent that the map of the Panchayat was prepared not in the cadastral map prepared by the Information Kerala Mission as the same is yet to be prepared. Therefore, the present map was prepared on the basis of the map used for the purpose of delimitation in the year 2005. Therefore, it is pointed out that there is no infirmity in using the same in the absence of a cadastral map or the map prepared by the Department of Survey and Land Records.

In the reply affidavit, the petitioner has produced as Ext.P17, a true copy of the cadastral map prepared by the Kerala State Land Use Board.

Going by the statement made by the Commission, it is evident that the map prepared was based on the map used for the purpose of delimitation of 2005. It is maintained by the Commission that the cadastral map of the Panchayat is yet to be prepared by the Information Kerala Mission. It is not clear whether Ext.P17 was made available. Further, as the present map is one based on the map used for 2005, there cannot be any illegality as such.

It is explained that the building numbers, etc. have been shown in detail in the delimitation proposal along with its Annexures and therefore all the details are available in the draft itself. It is further pointed out that the assessment register as maintained by the Panchayat, was accepted for showing the building numbers, etc. Therein also, evidently no illegality could be attached to the said procedure. The census of the year 2001 is taken as the basic data for delimitation. The increase in the population thereafter or the number of voters may not reflect as basic data in the delimitation process. But the preparation of voters list is a different process and the parties who want to raise objection will be getting all opportunities to verify the numbers of buildings in each ward at the time of preparation of the voters list. Evidently, every objection against the draft delimitation proposal need not result in a fresh proposal for delimitation by the Commission, which legal position has been explained by the Apex Court in Association of Resident of Mhow (ROM) and Another Vs. The Delimitation Commission of India and Others, .

It is also clear that the Commission is not expected to pass individual orders on the objections raised.

For all these reasons, I find no reason to interfere with the process of delimitation. The writ petition is therefore dismissed. No costs.