V. Mohanan vs State of Kerala and Others

T.R. Ramachandran Nair, J.—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.

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.

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 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 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.

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.

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 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.

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.