IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 21875 of 2010(H) ------------------------------------- PETITIONER(S): ------------------ M.JOHN,S/O.LATE P.M.NADAR,JIM VILLA, KAKKAVILA.P.O,KARODE,TRIVANDRUM. BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY,OFFICE OF KERALA STATE ELECTION COMMISSION,TRIVANDRUM. 2. KERALA DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY,TRIVANDRUM. 3. THE DISTRICT COLLECTOR,COLLECTORATE, THIRUVANANTHAPURAM. 4. ASSISTANT DEVELOPMENT COMMISSIONER, COLLECTORATE,THIRUVANANTHAPURAM. 5. SECRETARY,KARODE GRAMA PANCHAYATH, KARODE,THIRUVANANTHAPURAM. 6. SASIKUMAR,S/O.GOVINDAN,AGED 60 YEARS, AKSHAYA,PAZHAYA UCHAKKADA,KAKKAVILA.P.O, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATION R3 & R4 BY GOVT. PLEADER SMT.K.R.KEEPA R6 BY ADVS. SRI.R.T.PRADEEP, SRI.V.VIJULAL. R5 BY SRI.PIRAPPANCODE V.S.SUDHIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2010, ALONG WITH RP NO. 662 OF 2010 THE COURT ON 11/08/2010 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21875/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DTD. 21.12.2009 ISSUED BY THE 2ND RESPONDENT. P2:- COPY OF THE OBJECTION FILED BY THE 6TH RESPONDENT. P3:- COPY OF THE PROCEEDINGS DTD. 29.4.2010 OF THE 2ND RESPONDENT. P4:- COPY OF THE REPORT DTD. 30.1.2010 SUBMITTED BY THE 4TH RESPONDENT. P5:- COPY OF THE STATEMENT DTD. 28.6.2010 FILED BY THE 2ND RESPONDENT IN WPC. 19796/2010. P6:- COPY OF THE ORDER DT. 1.7.2010 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE FINAL ORDER DTD. 8.7.2010 ISSUED BY THE 2ND RESPONDENT. P8:- COPY OF THE REPRESENTATION DTD. 10.7.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. TRUE COPY P.S.TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.21875/2010-H & R.P.No.662/2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2010. JUDGMENT The same petitioner has filed both the writ petition and the review petition. 2. The issue pertains to the delimitation of wards of Karode Grama Panchayat. For easy reference, I will refer to the documents produced in W.P.(C) No.21875/2010. The preliminary notification published by the Delimitation Commission is Ext.P1, as per which objections were called for. The 6th respondent filed certain objections. The same has been produced as Ext.P2. The total number of wards in the Panchayat is 19. We are concerned with Ward Nos.XII, XIII and XVII. In Ext.P2 objections, the 6th respondent pointed out that Ward No.XII requires modification. If 102 houses from it are deleted and added to Ward No.XIII ( Kunniyodu) and 68 houses are removed from Ward No.XVII and added to Ward No.XII (Ambanavila), then Ambanavila ward will have three natural boundaries by way of roads. 3. The Delimitation Commission enquired about the objections wpc 21875/2010 & rp 662/2010 2 through the 4th respondent Assistant Development Commissioner, who submitted Ext.P4 report recommending the suggestions made by the 6th respondent. The Delimitation Commission thereafter published Ext.P3 order disposing of all objections received, wherein, only one suggestion by the 6th respondent regarding the addition of 68 houses from Ward No.XVII to Ward No.XII was accepted and the deletion of 102 houses from Ward No.XII was not made. This was challenged by the 6th respondent in W.P.(C) No.19796/2010. It was submitted during the pendency of the writ petition before this Court that the remaining objections raised by the 6th respondent will be considered before finalising Ext.P4 therein and after another enquiry, by Ext.P6, it was ordered to include 102 houses in Ward No.XIII (Kunniyodu). Ext.P7 is the final order dated 8.7.2010 of the Delimitation Commission, delimiting the entire wards which is under attack in the present writ petition. The petitioner has filed a fresh objection as per Ext.P8 and failing to get consideration of the same, he has filed this writ petition seeking various reliefs. 4. The 6th respondent has filed a counter affidavit. Learned counsel for the petitioner Shri Thomas Abraham submitted that the Delimitation Commission could not have considered the objections raised by the 6th wpc 21875/2010 & rp 662/2010 3 respondent after it had rejected a part of his objections and delimiting the wards as per Ext.P3. It is pointed out that acceptance of the suggestions in toto, has resulted in 'gerrymandering' to suit the convenience of the 6th respondent. It is pointed out that the inclusion of 102 houses to Ward No.XIII is without any notice to the voters of these houses. It is also pointed out that this has resulted in increase of the population in Ward No.XIII above the average now fixed. The population in Ward No.XIII will become 2050 which will be 20.04% above the average number of 1625. It is therefore submitted that gross injustice has been done in the matter. 5. Learned counsel for the 6th respondent submitted that the petitioner wants to contest from Ward No.XIII and the proposal for delimitation of these three wards was mooted by the Secretary only under the influence of the petitioner and to suit his convenience. It is submitted that the suggestions made by the 6th respondent were clearly accepted by the enquiry officer, but only one part was incorporated in the order Ext.P3 and no reasons were pointed out with regard to the non-consideration of the other part of the suggestions which led to the filing of the earlier writ petition by him. It is pointed out that after the earlier writ petition, W.P.(C) No.19796/2010 was filed, the Secretary of the Panchayat was again wpc 21875/2010 & rp 662/2010 4 directed to submit a report after local inspection by the Delimitation Commission, which report has been considered in the present order Ext.P6. It is submitted that as per the draft notification, the boundaries of the ward were unwieldy and it was without any natural boundaries. If 68 houses from Ward XVII are included in Ward No.XII and 102 houses are included in Ward No.XIII, as suggested by the petitioner, then it will have three natural boundaries. It is further pointed out that going by the draft proposal and Ext.P3, the population of Ward No.XII would have been 2243 which will be 30% above the average population. It is also pointed out that even going by the report of the Secretary, 102 houses could have been either retained in Ward No.XII or in Ward No.XIII together and it could not have been distributed in these two wards, in the absence of natural boundaries. 6. Learned counsel for the petitioner further pointed out that the present order is clearly against the stand taken by the Delimitation Commission in the statement filed in W.P.(C) No.19796/2010 which is produced as Ext.P5. In para 10 therein, it was pointed out that if 102 residential houses are to be shifted from the proposed Ward No.XII to Ward No.XIII, there will be an increase of population to 2050 from that of 1625 and the number of residential buildings will come to 542 from that of wpc 21875/2010 & rp 662/2010 5 440. 7. The objection raised by the 6th respondent was initially submitted for verification and enquiry by the 4th respondent who submitted Ext.P4 report. Evidently, after conducting the local enquiry with regard to the two suggestions which is the subject matter of dispute herein, he recommended the acceptance of the suggestions. It is evident from Ext.P4 that if the objections of the 6th respondent are accepted, i.e. exclusion of 68 houses from Ward No.XVII by adding it to Ward No.XII and exclusion of 102 houses from Ward No.XII to be added to Ward No.XIII, then it will have natural boundaries on three sides by way of important roads. The contention raised in the earlier writ petition was that no reasons were pointed out by the Delimitation Commission with regard to the non consideration of the second suggestion to delete 102 houses from Ward No.XII and inclusion of them in Ward No.XIII, in spite of the recommendation made by the enquiry officer. The objections of the petitioner in the earlier writ petition is available as Annexure A2 in R.P.No.662/2010 filed against the writ petition concerned. In Annexure A2 it is pointed out that if the suggestions are accepted, then on all three sides there will be natural boundaries by way of roads, otherwise the population wpc 21875/2010 & rp 662/2010 6 of Ward No.XII will be 2243 and there will be 30% variation. 8. When W.P.(C) No.19796/2010 came up for hearing, learned Standing Counsel for the Commission submitted that the Commission is examining the objections/suggestions submitted by the petitioner therein and the same will be considered before finalising Ext.P4 therein (Ext.P3 herein). 9. Evidently, thereafter going by Ext.P6 produced in the present writ petition, the Commission called for a further report from the Secretary of the Panchayat which is extracted in Ext.P6 order itself. The Secretary reported that the 120 ( not 102) houses can either be retained in Ward No.XII or be included in Ward No.XIII. This was considered by the Commission and accordingly Ext.P6 order was passed. Evidently, the total number of houses, i.e. 120, could not be distributed between Ward Nos.XII and XIII, in the light of the above report as otherwise natural boundaries will not be available. 10. The crucial question is whether the Commission has acted illegally in accepting the objection of the 6th respondent, as contended by the learned counsel for the petitioner. It is submitted that there was no positive direction in the interim order passed by this Court to accept the wpc 21875/2010 & rp 662/2010 7 suggestion and the interim order cannot be taken as a ground for the Commission to pass Ext.P6 order. 11. Learned counsel for the 6th respondent submitted that the petitioner had not approached the Delimitation Commission pursuant to Ext.P1 notification and within the period provided therein. It is therefore submitted that Ext.P8 objection cannot be considered at all as it is filed out of time, that too only after the final order delimiting the wards is issued, by Ext.P7. 12. It is explained by the learned counsel for the petitioner that the petitioner had no complaint with regard to the draft proposal made by the Secretary and therefore he could not have filed any objection and that cannot be taken as a ground to oppose his prayers. It is pointed out that the final notification has not yet been published in the Gazette and therefore Ext.P7 cannot be treated as having any force of law and therefore this Court can interfere with the same and direct the Commission to give reliefs in the matter. 13. The first question is whether Ext.P8 objection can be considered by the Delimitation Commission. The procedure for delimitation is provided in Section 10 of the Kerala Panchayat Raj Act. As per sub- wpc 21875/2010 & rp 662/2010 8 section 2(a) of the Act, the Delimitation Commission shall “publish the proposals of the Commission in respect of the matters mentioned in clause (a) of sub-section (1) with a notice specifying the date on or after which the proposals will be considered by it and by inviting objections and suggestions with respect to the proposals before a date specified in the notice.” Therefore, the objections and suggestions will have to be submitted before the crucial date and herein, it was 11.1.2010as evident from the statement filed in W.P.(C) No.19796/2010. Thirteen objections were received which were enquired through the Asst. Development Commissioner, Collectorate, Trivandrum. The objections filed by the 6th respondent were received which were also subjected to enquiry by the enquiry officer. 14. Since the Delimitation Commission has not extended the last date beyond 11.1.2010, it cannot be said that Ext.P8 objection now submitted by the petitioner in the present writ petition could be considered. If at all the petitioner had any suggestion to be made even to retain the proposal as such, he should have approached the Commission at that point of time, ie. before 11.1.2010. Shri Thomas Abraham, learned counsel for the petitioner submitted that there was no reason for him to approach the Commission as wpc 21875/2010 & rp 662/2010 9 he was satisfied with the draft proposal. But Ext.P1 was only a draft and as the Commission had invited objections and suggestions on the same, unless a party avails of the said opportunity, going by Section 10, after the last date of submitting objections or suggestions, he cannot make the same subsequently. Therefore, I do not find any reason to direct the Commission to consider Ext.P8 since final order has been passed as per Exts.P6 and P7, delimiting the wards. 15. The next question is whether the Commission has done any illegality in passing Ext.P6. The objections raised by the 6th respondent was subjected to enquiry by the 4th respondent and Ext.P4 is the report. True that in the statement filed in the earlier writ petition, viz. Ext.P5, the Commission had explained the reasons for passing Ext.P3 order, but that will not stand in the way of the Commission considering the objections, pending W.P.(C) No.19796/2010, since the objections of the 6th respondent was already filed within the time prescribed by the Commission. Again, the matter was sent for a report by the Secretary, who submitted that either 102 (120) houses can be retained in Ward No.XII or it can be included in Ward No.XIII. The Commission accepted the suggestion to include these 102 (120) houses in Ward No.XIII. If it is not excluded from Ward No.XII, wpc 21875/2010 & rp 662/2010 10 the population of Ward No.XII will be 2243 which will be 30% above the average population. Apart from that, now Ward No.XII will have three natural boundaries by way of roads also. Therefore, evidently, the retention of 102 (120 houses as now estimated), would have resulted in irregular fixation of boundaries to Ward No.XII, which are not natural. Therefore, as a result of Ext.P6, the Ward No.XII is now having three natural boundaries and the population also will come down. 16. Then the other question is whether the increase in population of Ward No.XIII could have been justified by this process. As the 120 houses cannot be divided between Wards XII and XIII, either of the option alone could have been accepted by the Commission. Since the Commission has bestowed its attention to have natural boundaries for Ward No.XII and to bring down the population to a reasonable limits, it cannot be said that the decision reflected in Ext.P6 is so arbitrary warranting interference by this Court. 17. Apart from that, the objection/suggestion by the 6th respondent was supported by the enquiry report Ext.P4 and which is now finally accepted by the Commission based on a fresh report by the Secretary of the Panchayat also. wpc 21875/2010 & rp 662/2010 11 18. Shri R.T. Pradeed, learned counsel appearing for the 6th respondent contended that the Commission has only considered the matter in the light of the report Ext.P4 and the further report made by the Secretary and therefore there is no illegality in the matter, as otherwise the population of Ward No.XII would have been 30% above the average taken. According to him, the effort made by the Secretary earlier by putting the draft proposal with irregular boundaries, was only to help the petitioner in the present writ petition who wants to contest from that ward. I am not going into the merits of the said contention as it is already found that the order passed by the Commission as per Ext.P6 cannot be said to be illegal or irrational. 19. Shri Thomas Abraham, learned counsel for the petitioner submitted that in the light of the decision of the Apex Court in State of Madhya Pradesh and others v. Devilal (AIR 1986 SC 434) Ext.P6 order cannot be supported. It is pointed out that the Apex Court has deprecated the attempt of 'gerrymandering' which is squarely attracted here. A reading of the judgment shows that that was a case where the constituencies were ordered to be altered by the Government, after the final notification was issued and after the process of election had started, which was found incompetent by the Apex Court. This is clear from the following part of the wpc 21875/2010 & rp 662/2010 12 judgment: “A close and combined reading of these provisions and the other provisions of the Act which follow hereafter make it quite evident that the actual control over the Grama Panchayat in a block is through the Janapada Panchayat for the block. It would also appear that the result of the elections to the Janapada Panchayat would depend upon the nature of the electoral roll prepared for each constituency in a block. If the State Government were to issue a notification under sub-s (1) of Section 106 of the Act for redistribution of the constituencies in a block after the process of election has started, it would necessarily change the whole pattern of voting in the election of members for the Janapada Panchayat. This is plainly a typical case of gerrymandering. As is well-known, 'gerrymander' is an American expression which has taken root in the English language meaning to arrange election districts so as to give an unfair advantage to the party in power by means of a redistribution act or to manipulate constituencies generally.” The situation herein is not identical. Ext.P3 order has not resulted in any final notification delimiting the wards by the Commission at that point of time and the notification for the election has not been published. In that view of the matter, the principle stated by the Apex Court in Devilal's case (AIR 1986 SC 434) will not help the petitioner. 20. For all these reasons, I find no reasons to interfere with Ext.P6 wpc 21875/2010 & rp 662/2010 13 and as already held, at this stage the Commission cannot be directed to consider Ext.P8 representation also. Hence, the writ petition is dismissed. 21. R.P.No.662/2010 is filed by by way of abundant caution by the petitioner sustaining the challenge against Ext.P6 order. The writ petition was disposed of recording the submission made by the learned Standing Counsel for the Delimitation Commission. Therein, the challenge was against Ext.P4 proceedings of the Commission. Pending the writ petition, the Commission again examined the matter and passed Annexure A6 order dated 1.7.2010 modifying Ext.P4. Learned counsel for the writ petitioner therein submitted that the grievance raised by the petitioner has been redressed by Annexure A6 and recording the same, the writ petition was closed. As this Court has not entered any finding on the merits of the matter, there is no reason to review the judgment and hence the review petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/