T. Karthikeyan vs The State Election Commission and Others

T.R. Ramachandran Nair, J.—The petitioner is aggrieved by the division of wards of Parappanangadi Grama Panchayat. The total strength of the Panchayat committee now notified is 23. Ext.P1 is the proposal for delimitation, against which the petitioner and certain others had filed various objections. Mainly it was pointed out that the basis of delimitation was not in accordance with the geographical criteria and the delimitation is made to suit the convenience of the party in power in the Panchayat. The petitioner had submitted another proposal for delimiting the wards. It is also pointed out that the Village Officer''s report was not properly considered by the Delimitation Commission. Allegations have been raised against the Chairman of the Delimitation Commission also in the writ petition.

Ext.P4 is the final order passed by the Commission. It is pointed out that in Ext.P4, in the list appended to the same, the Commission has not mentioned the total number of habitable houses. The petitioner has sought to highlight these contentions in various paragraphs of the writ petition.

As directed by this Court, the Delimitation Commission has filed a statement as well as an additional statement. In the statement, a preliminary objection has been raised against the maintainability of the writ petition in view of the express 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 S.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.

With regard to the contentions on merits, explanations have been offered in the additional statement. It is pointed out that 14 objections were received including that of the petitioner which were enquired through the Village Officer, Parappanangadi. On the basis of the enquiry report and the remarks thereon by the District Collector, the objectors were personally heard by the Commission on 15.3.2010. After considering all the points raised in the objections and the additional facts gathered through the personal hearing, the Commission passed order dated 12.5.2010 directing the Secretary of the Grama Panchayat to effect 23 changes/modifications in the draft proposal.

The Commission, in para 6 of the additional statement, has given the ward-wise details of the delimitation of constituencies including the details of the residential houses and assessed population in each ward. It contains the number of residential houses included in each ward. It is pointed out that the enquiry report was considered while delimiting the constituencies and the allegation contrary, is also denied.

One of the main contentions raised by the petitioner is in respect of ward No. 8. According to the petitioner, in ward No. 8 the total number of residential buildings is only 345, whereas it is shown as 510 in Ext.P4. The Commission has explained that in ward No. 8 the total number of residential buildings is 510 having the assessed population of 2553. In the light of the details available in the chart given by the Commission, the contentions raised by the petitioner cannot be sustained.

The process of delimitation is based on the 2001 census. The total population and the total number of houses are separately reckoned for the purpose of arriving at various figures. The assessment register of the Panchayat has to be referred to for the purpose of fixing the total number of residential buildings. Learned Counsel for the petitioner vehemently contended that the basic data relied upon by the Commission as reflected in the relevant orders are not correct. It is not demonstrated as to how the Commission has acted beyond the power vested under the provisions of the Act. In all the wards the total number of houses have been given. The details regarding the houses are also available in the annexures to the delimitation order, as explained by the Commission. In that view of the matter, the contentions raised by the petitioner cannot be accepted.

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