IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 20764 of 2010(U) -------------------------- PETITIONER(S): --------------- T.SAJEEVAN, S/O.GOPALAN (LATE), AGED 36 YEARS, THAYYILTHAIKANDY HOUSE, P.O.PATHAYAKUNNU, PATTYAM AMSOM AND DESOM, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.ANIL.D.KAITHAKKAL RESPONDENT(S): --------------- 1. KERALA STATE DELIMITATION COMMISSION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTION COMMISSION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, KANNUR. 4. PATTIAM GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KOTTIYODI, P.O.PATHAYAKUNNU, THALASSERI TALUK. ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R1 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 R3 BY G.P. SHRI K. RAMESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON 17/08/2010 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 20764 of 2010-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2010. JUDGMENT The petitioner is aggrieved by the delimitation of wards of Pattiam Grama Panchayat. It is mainly contended that the suggestions made by him were not properly considered which has resulted in gerrymandering in the said Grama Panchayat. 2. There is an increase in the total number of wards from 17 to 18 this time. According to the petitioner, various objections were raised by him and along with his objections, he has submitted a sketch plan of ward Nos.5 and 14. In the draft proposal, the map of the two wards is drawn wrongly and against the real position. It is pointed out that the objections were not considered at all and the enquiry report was discarded. 3. Exts.P1 and P1(a) are the copies of the draft proposal pertaining to ward Nos.5 and 14. Ext.P2 is the copy of the plan of Pattam Grama Panchayat and Ext.P2(a) and P2(b) are the copies of the sketch plan produced by the petitioner. Ext.P3 is the objection and Ext.P4 is the report of the enquiry officer on the objection submitted by the petitioner. Ext.P4 (a) is the copy of the report on the objections submitted by certain other wpc 20764/2010 2 objectors. Ext.P6 is the copy of the final order dated 30.4.2010 and Ext.P7 is the copy of the objection submitted by the petitioner with regard to the location of polling booths. 4. The Delimitation Commission has filed a detailed statement and an additional statement. In the detailed statement, a preliminary objection has been raised relying upon the bar of judicial review provided under Article 243-O(a) of the Constitution of India. 5. 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.” wpc 20764/2010 3 6. 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 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. 7. 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 wpc 20764/2010 4 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 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”. 8. 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) wpc 20764/2010 5 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]”. 9. 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. 10. 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 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) wpc 20764/2010 6 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 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 wpc 20764/2010 7 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. 11. In the light of the above, the preliminary objection raised by the Commission is sustainable. 12. It is explained in the additional statement that three objections were received which were enquired through the Asst. Registrar of Co- operative Societies (Audit), Thalassery. On the basis of the enquiry report and the remarks thereon by the District Collector, the petitioners and other objectors were personally heard by the Commission on 16.2.2010. After having considered all the facts, the Commission passed Ext.P6 order wpc 20764/2010 8 directing the Secretary of the Panchayat to effect three changes in the draft proposal. 13. It is explained in para 6 of the statement that about the objection raised by the petitioner with regard to the inclusion of certain buildings in ward Nos.5 and 14, the enquiry officer suggested that the objection may be considered without any specific recommendation. The Commission did not consider the same since the average population included in the proposed ward Nos.5 and 14 are within the limits as per the guidelines fixed. 14. Therefore, it is evident that the Commission has taken the average population and retained the same in the respective wards, which cannot be said to be illegal. Learned counsel for the petitioner vehemently contended that the sketch will show that the wards have been divided without any real basis and some parts of ward Nos.5 and 14 have been earmarked unscientifically. It is further explained by the learned counsel for the Commission that such exercise has been done to retain the natural+ boundaries and therefore there is no illegality in the same. The above argument appears to be correct. Unless it is shown that natural boundaries are breached to make the entire exercise illegal, the contention raised by the petitioner cannot be accepted. The Commission may have to delimit the wpc 20764/2010 9 constituencies by taking out the natural boundaries, the average population and average number of houses in each ward. Every suggestion made by the parties need not result in a new proposal by the Commission. For all the above reasons, I find no infirmity in the order passed by the Delimitation Commission. The writ petition is therefore dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/